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UNIVERSITY  OF  CALIFORNIA 
AT   LOS  ANGELES 


GIFT  OF 

CARNEGIE  ENDOWMENT 

FOR   INTERNATIONAL   PF^' 


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Carnegie    Endowment    for    International    Peace 

DIVISION  OF  INTERNATIONAL  LAW 

An 
International  Court  of  Justice 


Letter  and  Memorandum  of  January  12,   1914, 

TO    THE    NeTHERLAND    MINISTER    OF    FOREIGN 

Affairs,  in  behalf  of  the  Establish- 
ment OF  an  International 
Court  of  Justice 


BY 


JAMES  BROWN  SCOTT 

A.M.   (Harvard);  J.U.D,   (Heidelberg);   LL.D.    (George  Washington  University). 
Technical  Delegate  of  the  United  States  of  America  to  the  Second 

Hague  Peace  Conference 


NEW  YORK 

OXFORD  UNIVERSITY  PRESS 

AMERICAN  BRANCH:  35  West  82nd  Strkbt 

LONDON,  TORONTO.  MELBOURNE,  AND  BOMBAY 
HUMPHREY  MILFORD 

1916 


COPYRIGHT  1916 

BY    THE 

CARNEGIE  ENDOWMENT  FOR  INTERNATIONAL  PEACE 
Washington,  D.  C. 


•  •  •    •  t    •  , 


THE    OUINN    4    nODEN    CO.   PReSS 

HAHWAY,     N.    J, 


in 

CO 


Respectfully  inscribed  to 
the  three  Secretaries  of  State  of  the  United  States, 

ELIHU  ROOT,  ROBERT  BACON,  AND  PHILANDER  CHASE  KNOX, 

under  whose  administrations  the  steps  set  out  in  this  little  volume 


2  were  taken  to  create  an  International  Court  of  Justice 


o  -5 


O   cc 
O 


PREFATORY  NOTE 

In  an  address  delivered  on  the  first  day  of  February,  1916,  at  Des 
Moines,  Iowa,  President  Wilson  said : 

You  know  that  there  is  no  international  tribunal,  my  fellow- 
citizens.  I  pray  God  that  if  this  contest  have  no  other  result,  it  will 
at  least  have  the  result  of  creating  an  international  tribune  and  pro- 
ducing some  sort  of  joint  guarantee  of  peace  on  the  part  of  the 
great  nations  of  the  world. 

This  little  volume,  published  with  the  permission  of  the  Honorable 
Robert  Lansing,  Secretary  of  State  of  the  United  States,  because  with- 
out his  permission  the  official  documents  which  it  contains  could  not 
properly  be  made  public,  is  intended  to  show  the  progress  already  made 
in  creating  the  international  tribunal,  of  which  the  President  of  the 
United  States  is  such  an  earnest  and  such  a  convinced  advocate. 

In  calling  attention,  as  this  little  volume  does,  to  the  cooperation  of 
Germany,  France,  Great  Britain,  and  the  United  States  in  the  cause  of 
international  justice,  the  undersigned  ventures  the  hope  that  these  four 
nations  may  soon  again  cooperate  as  fellow-workers  in  the  cause  of 
international  justice,  for  they  must  needs  cooperate  in  this  cause  if 
justice  is  one  day  to  regulate  the  conduct  of  nations. 

James  Brown  Scott, 
Director  of  the  Dimsion  of 
International  Law. 
Washington,  D.  C., 
February  28,   1916. 


CONTENTS 


PAGE 

Letter  of  James  Brown  Sco'.t  to  the  Netherland  Minister  of  Foreign 
Affairs,  dated  January  12,  1914,  concerning  the  Establishment 
of  a  Court  of  Arbitral  Justice i 

Appendix  No.  i.  Draft  of  a  Memorandum  approved  by  Secretary  of 
State  Knox  proposing  the  Establishment  of  the  Court  of  Arbitral 
Justice  recommended  by  the  Second  Hague  Peace  Conference      6 

Appendix  No.  2.  Draft  of  an  Identic  Circular  Note  proposed  to  and 
approved  by  Secretary  of  State  Knox  to  be  sent  to  the  American 
Ambassadors  at  London,  Berlin  and  Paris 18 

Memorandum  of  James  Brown  Scott,  accompanying  his  Letter  of  Janu- 
ary 12,  1914,  TO  THE  Netherland  Minister  of  Foreign  Affairs, 
proposing  the  Establishment  of  a  CopRT  of  Arbitral  Justice  by 
and  for  Germany,  the  United  States,  Austria-Hungary,  France, 
Great  Britain,  Italy,  Japan,  the  Netherlands  and  Russia 25 

Appendix  No.  i.  Draft  Convention  concluded  at  Paris  in  March,  1910, 
by  Representatives  of  Germany,  the  United  States,  France  and 
Great  Britain  to  put  into  effect  the  Draft  Convention  recom- 
mended by  the  Second  Peace  Conference  relating  to  the  Estab- 
lishment of  a  Court  of  Arbitral  Justice Qi 

Appendix  No.  2.  Draft  of  a  Convention  for  the  putting  into  force  of 
the  Draft  Convention  relating  to  the  Establishment  of  a  Court 
of  Arbitral  Justice,  concluded  at  The  Hague,  July,  1910 94 

Appendix  No.  3.  Proposed  Draft  of  a  Convention  for  the  Establishment 
of  a  Court  of  Arbitral  Justice  by  and  for  Germany,  the  United 
States,  Austria-Hungary,  France,  Great  Britain,  Italy,  Japan, 
the  Netherlands  and  Russia 98 

Annex:  Draft  Convention  relative  to  the  Creation  of  a  Court  of 
Arbitral   Justice 100 


PROPOSED  COURT  OF  ARBITRAL  JUSTICE 

Letter  of  James  Brown  Scott  to  His  Excellency,  Jonkheer  J. 
Loudon,  Minister  of  Foreign  Affairs  of  the  Netherlands,  con- 
cerning the  Establishment  of  a  Court  of  Arbitral  Justice 

The  Hague,  Holland, 
January  12,  1914. 
My  Dear  Mr.  Loudon  : 

In  the  course  of  an  interview  which  you  were  good  enough  to  give 
me  at  The  Hague  on  October  2,  1913,  you  expressed  an  interest  in  a 
project,  which  I  could  do  little  more  than  touch  upon  at  the  time,  for 
the  present  establishment  of  the  Court  of  Arbitral  Justice  by  and  for 
the  powers  that  might  be  willing  to  do  so  and  its  installation  in  the ' 
Peace  Palace  before  the  meeting  of  the  Third  Peace  Conference.  I 
stated,  without  going  into  details,  that  Holland,  as  the  host  of  the  pro- 
posed court,  would  naturally  be  a  member  of  it,  and  I  mentioned  as 
possible  contracting  parties,  in  addition  to  Holland,  the  following  coun- 
tries :  Germany,  the  United  States,  Austria-Hungary,  France,  Great 
Britain,  Italy,  Japan  and  Russia.  The  proposed  Academy  of  Interna-'- 
tional  Law  at  The  Hague,  which  has  this  day  been  agreed  to,  was  the 
chief  topic  of  our  conversation,  and  I  ventured,  in  connection  with  it, 
to  suggest  the  possibility  of  creating  the  Court  of  Arbitral  Justice, 
so  that  at  the  formal  opening  of  the  Academy,  which  we  hope  will  take 
place  in  August  of  the  present  year,  you  might  be  able  to  announce  that 
the  eight  powers,  to  which  reference  has  been  made,  had,  upon  the 
initiative  of  Holland,  agreed  to  constitute  the  Court  of  Arbitral  Jus- 
tice, to  be  installed,  like  the  Academy  of  International  Law,  in  the 
Peace  Palace.  You  stated  in  reply  that  you  thought  well  of  the  idea 
and  you  intimated  your  willingness  to  receive  and  consider  a  mem- 
orandum on  the  subject  which  I  offered  to  prepare.  This  somewhat 
formal  and  forbidding  document  I  now  have  the  honor  to  hand  you,  in 
the  hope  that  it  may  be  of  some  service  to  you  and  that  it  may  advance 
the  cause  of  judicial  settlement  of  international  disputes,  as  it  certainly 
will,  if  it  should  lead  you  to  attempt  the  establishment  of  the  Court 
of  Arbitral  Justice. 

The  difificulty  which  has  heretofore  stood  in  the  way  of  Its  com- 
position has  been  the  inability  or  failure  to  hit  upon  a  method  of 


2  AN  INTERNATIONAL  COURT  OF  JUSTICE 

appointing  the  judges  which  would  be  acceptable  to  all  the  powers  or  v 
to  any  large  number  of  them,  a  difficulty  due  to  the  fact  that  all  nations 
wish,  and  not  unnaturally  so,  to  be  represented  in  a  court  which,  to 
be  truly  international  and  to  bind  all  nations  by  its  judgments,  must  be 
created  by  all.  There  was  a  general  agreement  at  the  Second  Peace 
Conference  of  The  Hague  in  1907  that  the  proposed  court  should  be 
established  and  be  permanently  in  session  at  The  Hague  by  its  delega- 
tion of  three  judges.  Composed,  as  it  would  be,  of  judges  appointed 
for  a  long  period,  namely,  twelve  years,  it  would  have  all  the  advantages 
of  a  court  of  justice  and  none  of  the  disadvantages  of  a  mixed  com- 
mission, or  of  a  special  and  temporary  tribunal  of  arbitration. 

The  present  proposal  is  more  modest  and  its  very  modesty  frees  it 
from  the  difficulties  involved  in  the  formation  of  a  universal  tribunal 
in  which  all  nations  as  such  are  to  be  represented,  and  raises  the  hope 
that,  freed  from  these  difficulties,  the  smaller  and  less  ambitious  court    / 
can  be  created  for  the  powers  that  may  be  willing  to  create  it  at  the 
present  time.    But  however  small  the  court  may  be,  it  should  be  under- 
stood and  expressly  stated  in  the  convention  constituting  it  that  non- 
contracting  powers  may  use  it  if  they  so  desire,  and  that  they  may 
appoint  judges  for  the  trial  and  decision  of  their  particular  case  or  ^ 
cases.     A  court  of  this  kind,  although  primarily  created  by  and  for  ' 
a  relatively  small  number  of  nations  would  have  the  advantages  and 
render  the  services  of  a  truly  international  court,  in  which  every  nation 
that  cares  to  use  it  is  treated  as  an  equal  of  every  other  state. 
/         But  it  is  not  the  purpose  of  this  letter  to  outline  the  plan  and  to 
analyze  its  provisions  in  detail  as  this  is  done  in  the  memorandum. 
It  is  rather  to  explain  the  raison  d'etre  of  the  memorandum,  and  to 
justify  its  length,  for  it  is,  I  fear,  a  somewhat  lengthy  paper.     If  it 
dealt  solely  with  the  proposed  method  of  constituting  the  court,  it 
would  be  much  shorter  than  it  is.    It  appeared  advisable,  however,  on 
reflection,  to  state  not  merely  the  proposition,  which  is  comparatively     , 
simple,  but  also  the  reasons  which  make  the  establishment  of  the  Court 
of  Arbitral  Justice  seem  necessary  both  for  the  judicial  decision  of 
international  disputes  and  for  the  development  of  international  law. 
This  method  of  treatment  required  some  consideration  of  the  present 
so-called  Permanent  Court  of  Arbitration,  because  if  this  institution  is  ^ 
really  a  court  in  the  strict  and  technical  sense  of  the  word,  and  if  it 
performs  the  services  of  a  court  of  justice,  the  creation  of  a  new  court 
of  like  nature  seems  unnecessary.     I  have,  therefore,  but  I  hope  in  no     , 
unkindly  spirit,  dwelt  at  some  length  upon  the  defects  and  shortcomings'/ 
of  the  so-called  court  rather  than  upon  its  services,  which,  however, 


AN  INTERNATIONAL  COURT  OF  JUSTICE  3 

I  neither  overlook  nor  underestimate,  because  it  is  by  reason  of  its 
defects  and  shortcomings  that  the  new  institution  seems  necessary.  In 
doing  so  I  have  accepted  the  burden  of  proof  that  any  one  must  accept 
who  proposes  a  change  in  existing  conditions,  and  in  the  course  of  the 
memorandum  I  have  tried,  in  a  fair  and  candid  spirit,  to  state  and  to 
meet  some  of  the  most  important  objections  that  may  be  and  indeed 
have  been  made  to  the  proposed  institution.  But  in  advocating  the 
newer  court  I  have  stated  my  sincere  conviction  that  the  present  so- 
called  court  should  be  maintained,  for  it  is  no  less  useful,  indeed  neces- 
sary, than  the  proposed  one  although  its  field  of  activity  is  different. 
As  Mr.  Bourgeois  pointed  out  in  his  admirable  address  at  the  Second 
Peace  Conference,  nations  may  and  doubtless  will  wish  to  form  special 
tribunals  composed  of  arbiters  of  their  immediate  choice  for  the  settle- 
ment of  perplexing  and  grave  disputes  of  a  political  nature ;  whereas 
the  same  nations  may  be  willing  to  accept,  for  the  decision  of  justifiable 
disputes,  judges  appointed  in  advance  of  their  controversies,  as  in  dif- 
ferences of  the  first  category  negotiation  is  expected,  perhaps  required ; 
while  in  the  second  category  the  impartial  and  passionless  application  of 
principles  of  law  and  of  justice  is  both  expected  and  required. 

In  order  to  establish  the  Court  of  Arbitral  Justice  it  is  necessary  to  >^ 
show  that  some  powers  are  willing  to  bring  it  into  being  and  I  have, 
therefore,  stated  the  agreement  of  Germany,  the  United  States,  France 
and  Great  Britain,  reached  at  Paris  in  March  and  at  The  Hague  in 
July,  1910,  to  constitute  the  court  for  a  limited  number  of  powers,  by 
means  of  the  composition  of  the  Prize  Court.  This  method  of  creating 
the  Court  of  Arbitral  Justice  presupposed  the  existence  of  the  Prize 
Court  as  it  was  evidently  impossible  to  use  the  composition  of  an  exist- 
ing court  that  did  not  exist. 

The  Netherland  Government  was  informed  of  these  negotiations  and 
I  had  the  very  great  pleasure  of  delivering  copies  of  the  various  agree- 
ments to  your  distinguished  predecessor,  Mr.  van  Swinderen. 

As  the  failure  of  Great  Britain  to  ratify  the  Declaration  of  London, 
upon  which  the  establishment  of  the  Prize  Court  seems  to  depend  as 
far  as  Great  Britain  is  concerned,  makes  the  early  constitution  of  the 
Prize  Court  problematical,  I  have  endeavored  to  show  in  the  memoran- 
dum that  it  is  unnecessary  longer  to  wait  upon  this  court  as  the  present    y 
proposal  to  form  the  Court  of  Arbitral  Justice  does  not  use  its  method   ' 
of  composition.    I  have  thought  it  advisable,  however,  for  the  sake  of  "^ 
completeness,  to  append  the  two  agreements  of  March  and  July,  1910, 
to  the  memorandum,  and  I  have  also  taken  the  liberty  of  appending  a 
draft  convention  calculated  to  give  effect  to  the  present  proposal. 


/ 


4  AN  INTERNATIONAL  COURT  OF  JUSTICE 

In  the  next  place,  I  have  advanced  reasons  tending  to  show  that  the 
Netherland  Government  is  not  only  justified  in  taking  the  initiative,/ 
through  diplomatic  channels,  to  constitute  the  Court  of  Arbitral  Justice 
as  recommended  by  the  Second  Conference,  but  that  this  Government 
may  properly  regard  it  as  its  duty  to  do  so.  Finally,  I  have  mentioned  <y 
the  reasons  which  seem  to  suggest  that  the  present  moment  is  both 
timely  and  propitious  for  such  negotiations  as,  after  war  and  disquiet- 
ing rumors  of  possible  war,  the  nations  may  well  turn  their  thoughts  to 
peace  and  their  efiforts  to  its  maintenance;  and  in  the  concluding  para- 
graph of  the  memorandum  I  have  ventured  the  hope  that  they  might 
be  willing  to  avail  themselves  of  the  opportunity  to  institute  a  perma- 
nent court  of  justice  and  to  install  it  in  the  Palace  of  Peace  at  one  and 
the  same  time  with  the  Permanent  Academy  of  International  Law  dur- 
ing the  course  of  the  year  1914. 

The  Administration  of  President  Taft  had  intended  to  take  action  in 
behalf  of  the  Court  of  Arbitral  Justice  and  the  late  Secretary  of  State, 
Mr.  Philander  C.  Knox,  requested  me  to  undertake  a  mission  to  the  ^ 
European  powers  for  this  purpose.  I  gladly  accepted  the  offer  with 
which  he  honored  me  and  suggested  the  present  method  of  constituting 
the  court.  I  drafted  a  memorandum  and  an  identic  circular  note  for 
his  consideration.  These  he  approved  and  signed  on  November  25,  / 
1912,  but,  for  reasons  which  in  no  way  reflect  upon  the  project  and  ^ 
which  are  immaterial  to  the  present  occasion,  it  was  deemed  best  not 
to  open  negotiations  at  that  time  with  the  various  powers  whose  co- 
operation -was  necessary  for  the  success  of  the  undertaking.  However, 
I  have  thought  it  of  more  than  passing  interest  to  annex  the  drafts  of 
the  memorandum  (Appendix  No.  i,  p.  6)  and  identic  circular  note  (Ap- 
pendix No.  2,  p.  18)  as  showing  the  reasons  which  influenced  the  Sec- 
cretary  of  State  and  the  project  which  met  with  his  approval.  Whether 
the  present  Administration  shares  these  views  I  am  unable  to  say,  as 
I  am  not  authorized  to  speak  in  its  behalf.  It  is  to  be  presumed,  how- 
ever, that  any  and  every  Administration  of  the  United  States  will  look 
with  favor  upon  what  has  generally  been  considered  to  be  essentially 
an  American  ideal. 

I  am,  however,  authorized  on  behalf  of  Mr.  Elihu  Root,  who  as 
Secretary  of  State  instructed  the  American  delegation  to  the  Second  ,  / 
Peace  Conference  to  propose  a  permanent  international  Court  of  Jus- 
tice, and  also  on  behalf  of  Mr.  Robert  Bacon,  who  as  Secretary  of 
State  endeavored  through  diplomatic  channels  to  establish  the  Court 
of  Arbitral  Justice,  to  say  that  they  heartily  approve  of  the  present 
method  to  secure  its  formation,  and  that  they  earnestly  hope  you  may 


AN  INTERNATIONAL  COURT  OF  JUSTICE  5 

feel  justified  in  taking  the  initiative  and  in  reaching  through  diplomatic 
channels,  as  recommended  by  the  Second  Conference,  an  agreement 
(with  Germany,  the  United  States,  Austria-Hungary,  France,  Great 
Britain,  Italy,  Japan  and  Russia)  respecting  the  selection  of  the  judges  \^ 
and  the  constitution  of  the  court. 

If  you  would  not  consider  it  impertinent  I  would  venture  to  suggest 
that,  if  the  proposed  method  of  composing  the  court  appeals  to  your 
judgment  and  if  you  decide  to  sound  the  powers  specified  as  to  their 
willingness  to  cooperate  in  its  establishment,  you  might  perhaps  recom- 
mend an  informal  conference,  to  be  held  at  The  Hague,  at  some  time  in 
the  near  future,  of  representatives  of  the  powers  which  approve  of  its 
institution,  particularly  of  the  delegates  of  the  powers  which  presented 
the  joint  project  to  the  Peace  Conference  and  which  negotiated  the 
agreements  of  March  and  July,  1910. 

It  is  needless  to  say  that  I  am  at  your  service  in  any  and  every  way 
in  which  you  may  think  that  I  can  be  of  use,  for  the  Court  of  Arbitral 
Justice  and  its  establishment  are  to  me  as  life  itself. 

In  the  hope  that  you  may  see  your  way  to  take  steps  for  the  forma- 
tion of  the  Court  of  Arbitral  Justice  in  this,  or  in  some  better  way 
which  may  occur  to  you,  and  thanking  you  for  the  opportunity  you 
have  given  me  of  laying  my  views  before  you  both  orally  and  in  writ- 
ing, I  am,  my  dear  Mr.  Loudon, 

Very  sincerely  yours, 

James  Brown  Scott. 
To  His  Excellency, 
JoNKHEER  J.  Loudon, 

Minister  of  Foreign  Affairs  of  the  Netherlands, 
The  Hague,  Holland. 


APPENDIX  NO.   I 

Draft  of  a  Memorandum  approved  by  Secretary  of  State  Knox,  pro- 
posing the  Establishment  of  the  Court  of  Arbitral  Justice  recom- 
mended by  the  Second  Hague  Peace  Conference  of  i^oy 

The  First  Hague  Peace  Conference,  called  in  the  first  instance  to 
consider  the  possible  reduction  of  armaments  and  the  burdens  which 
the  existence  and  increase  of  such  armaments  imposed  upon  the  peoples 
of  the  different  countries,  adopted,  among  other  important  international 
agreements,  the  Convention  for  the  pacific  settlement  of  international 
disputes,  "  with  a  view  to  obviating,  as  far  as  possible,  recourse  to 
force  in  relations  between  states,"  The  convention  dealt  with  good 
offices  and  mediation ;  created  the  system  of  international  commissions 
of  inquiry,  which  bore  good  fruit  in  the  peaceful  settlement  of  the 
Dogger  Bank  incident  between  Great  Britain  and  Russia;  recognized 
arbitration  of  legal  questions,  especially  in  the  interpretation  or  appli- 
cation of  international  conventions,  "  as  the  most  efifective  and  at  the 
same  time  most  equitable  means  of  settling  disputes  which  diplomacy 
has  failed  to  settle  " ;  devised  the  list  of  arbiters  from  which  a  temporary 
tribunal  could  be  formed  for  the  trial  and  adjustment  of  an  interna- 
tional controversy,  and  drafted  a  code  of  arbitral  procedure.  The 
Second  Peace  Conference,  which  met  at  The  Hague  in  1907,  revised 
and  enlarged,  in  the  light  of  experience,  the  provisions  of  this  important 
convention,  which,  however,  is  still  in  its  conception,  as  well  as  in  its 
fundamental  provisions,  essentially  the  contribution  of  the  First  Con- 
ference. For  the  purposes  of  the  present  memorandum,  it  is  only 
necessary  to  consider  the  so-called  Permanent  Court  of  Arbitration 
as  created  and  described  in  various  articles  of  the  original  convention 
of  1899  and  in  the  revised  form  of  1907.  The  experience  had  with 
international  arbitration  since  its  introduction  into  the  modern  practice 
of  nations  by  the  Jay  treaty  of  1794  between  Great  Britain  and  the 
United  States,  and  the  frequent  and  increasing  recourse  to  it,  notably, 
in  the  settlement  of  the  Alabama  controversy  between  Great  Britain 
and  the  United  States  by  the  Geneva  award  of  1872,  and  the  certainty 
of  continued  recourse  to  it  in  the  future  made  it  eminently  fitting  and 
proper  that  the  recourse  to  arbitration  should  be  facilitated  by  the 

6 


AN  INTERNATIONAL  COURT  OF  JUSTICE  7 

creation  of  apt  machinery  and  the  proceedings  before  arbitral  tribunals 
systematized. 

For  this  twofold  purpose  the  signatory  powers,  to  quote  Article  20 
of  the  convention,  "  undertake  to  organize  a  Permanent  Court  of 
Arbitration,  accessible  at  all  times,  and  operating,  unless  otherwise 
stipulated  by  the  parties,  in  accordance  with  the  rules  of  procedure 
inserted  in  the  present  convention."  In  order  to  organize  the  Perma- 
nent Court  contemplated  by  this  article,  each  of  the  signatory  powers 
was  entitled  to,  and  actually  did  select,  "  four  persons  at  the  most,  of 
known  competency  in  questions  of  international  law,  of  the  highest 
moral  reputation,  and  disposed  to  accept  the  duties  of  arbitrators." 
The  persons  thus  selected  constitute  the  list  or  panel  of  the  so-called 
court  and  are  appointed  for  a  term  of  six  years,  which  may  be  re- 
newed. From  this  list  of  select  arbiters,  the  nations  in  controversy 
desiring  to  avail  themselves  of  the  provisions  of  the  convention  may 
form  a  temporary  tribunal  for  the  trial  of  the  case,  by  choosing  the 
requisite  number  of  judges  and,  in  default  of  agreement,  "  each  party 
appoints  two  arbitrators,  and  these  together  choose  an  umpire."  This 
method,  which  would  permit  the  temporary  tribunal  to  be  composed 
of  four  interested  persons,  was  amended  by  the  Second  Conference  as 
follows : 

Each  party  appoints  two  arbitrators,  of  whom  one  only  can  be 
its  national  or  chosen  from  among  the  persons  selected  by  it  as  - 
members  of  the   Permanent  Court.     These  arbitrators  together 
choose  an  umpire. 

Under  the  revised  procedure,  therefore,  there  can  be  but  two  per- 
sons directly  interested  in  the  award  of  the  tribunal.  Under  these 
circumstances  it  is  evident,  as  was  said  at  the  Second  Peace  Conference, 
that  "  the  Permanent  Court  is  not  permanent,  because  it  is  not  composed 
of  permanent  judges;  it  is  not  accessible,  because  it  has  to  be  consti- 
tuted for  each  case ;  it  is  not  a  court,  because  it  is  not  composed  of 
judges."  It  is  unnecessary  to  point  out  to  those  who  have  had  experi- 
ence in  the  creation  and  operation  of  the  temporary  tribunal  that  it  is  ! 
difficult  and  time-consuming  to  constitute ;  that  the  expenses  incurred 
in  its  operation  and  which  fall  upon  the  individual  litigants  are  exces- 
sive; and  that  its  awards  are  not  wholly  free  from  the  suspicion  or  x 
taint  of  compromise.  The  delay  involved  in  its  composition  is  in  itself 
a  deterrent  to  arbitration,  for  nations  are  undoubtedly  less  inclined  to 
submit  a  case  to  arbitration,  even  when  the  list  is  known  from  which 
the  temporary  tribunal  can  be  constituted,  than  they  would  be,  if  "  a^ 


^<y 


8  AN  INTERNATIONAL  COURT  OF  JUSTICE 

Permanent  Court  of  Arbitration,  accessible  at  all  times,"  were  in  exist- 
ence, to  which  the  case  might  be  automatically  referred  upon  the  re- 
quest of  one  or  the  other  of  the  parties  before  the  countries  had  taken 
position  and  had  by  their  conduct  rendered  a  controversy  political, 
which  is  in  its  nature  essentially  legal. 

For  these  and  other  reasons  which  might  readily  be  mentioned,  the 
United  States  instructed  its  delegates  to  the  Second  Peace  Conference 
to  propose  "  a  permanent  tribunal  composed  of  judges  .  .  .  who  will 
devote  their  entire  time  to  the  trial  and  decision  of  international  causes 
by  judicial  methods  and  under  a  sense  of  judicial  responsibility,"  and 
that  the  judges  of  the  proposed  tribunal  "  should  be  so  selected  from 
the  different  countries  that  the  different  systems  of  law  and  procedure 
and  the  principal  languages  shall  be  fairly  represented." 

The  first  article  of  the  Arbitral  Court  Convention  is  the  direct  result 
of  these  instructions,  as  by  it  "  the  contracting  powers  agree  to  con- 
stitute, without  altering  the  status  of  the  Permanent  Court  of  Arbitra- 
tion, a  Court  of  Arbitral  Justice,  of  free  and  easy  access,  composed  of 
judges  representing  the  various  juridical  systems  of  the  world  and 
capable  of  insuring  continuity  of  arbitral  jurisprudence."  The  efforts 
of  the  American  delegation  to  constitute  a  truly  permanent  court  com- 
posed of  trained  judges  was  ably  seconded  by  the  delegations  of  Ger- 
many and  Great  Britain,  which  joined  in  the  proposal,  and  by  the 
French  delegation,  which,  although  not  a  joint  proposer,  was  a  con- 
vinced and  resourceful  ally. 

It  will  be  noted  that  the  proposed  court  was  not  to  displace  the  so- 
called  Permanent  Court  of  Arbitration,  which  was  to  remain  intact  and 
uninjured. 

It  was  stated  in  the  clearest  terms  by  the  distinguished  first  delegate 
of  France,  Mr.  Leon  Bourgeois,  in  answer  to  the  objection  that  the 
proposed  court  would  supersede  the  existing  institution,  that  there 
are  two  classes  of  controversies  which  may  properly  be  submitted 
to  arbitration,  namely,  those  in  which  a  political  element  is  present,  and 
those  of  a  purely  legal  nature ;  for  the  first  of  these  classes  a  tem- 
porary tribunal  with  arbiters  of  the  parties'  choice  might  be  preferable, 
whereas  for  the  second  a  permanent  court  composed  of  judges  would 
be  more  serviceable.  The  reasoning  of  Mr.  Bourgeois  is  so  important 
and  conclusive  and  so  relevant  to  the  question  at  issue  that  his  language 
on  these  points  should  be  quoted. 

If  (he  said)  there  are  at  present  no  judges  at  The  Hague,  it 
is  because  the  Conference  of  1899,  taking  into  consideration  the 
whole  field  open  to  arbitration,  intended  to  leave  to  the  parties  the 


AN  INTERNATIONAL  COURT  OF  JUSTICE  9 

duty  of  choosing  their  judges,  which  choice  is  essential  in  all  cases 
of  peculiar  gravity.  We  should  not  like  to  see  the  court  created 
in  1899  lose  its  essentially  arbitral  character,  and  we  intend  to 
preserve  this  freedom  in  the  choice  of  judges  in  all  cases  where 
no  other  rule  is  provided. 

In  controversies  of  a  political  nature,  especially,  we  think  that 
this  will  always  be  the  real  rule  of  arbitration  and  that  no  nation, 
large  or  small,  will  consent  to  go  before  a  court  of  arbitration 
unless  it  takes  an  active  part  in  the  appointment  of  the  members 
composing  it. 

But  is  the  case  the  same  in  questions  of  a  purely  legal  nature? 
Can  the  same  uneasiness  and  distrust  appear  here?  And  does  not 
every  one  realise  that  a  real  court  composed  of  real  jurists  may 
be  considered  as  the  most  competent  organ  for  deciding  contro- 
versies of  this  character  and  for  rendering  decisions  on  pure  ques- 
tions of  law  ? 

In  our  opinion,  therefore,  either  the  old  system  of  1899  or  the 
new  system  of  a  truly  permanent  court  may  be  preferred,  accord- 
ing to  the  nature  of  the  case.  At  all  events  there  is  no  intention 
whatever  of  making  the  new  system  compulsory.  The  choice  be- 
tween the  tribunal  of  1899  ^^^  the  court  of  1907  will  be  optional, 
and  experience  will  show  the  advantages  or  disadvantages  of  the 
two  systems. 

It  may  be  said  without  fear  of  contradiction  that  the  principle  of 
permanency  and  the  advisability  in  certain  cases  of  judicial  decision  of 
international  controversies  was  recognized  in  the  abstract  by  a  large 
majority  of  the  delegates  at  the  Second  Peace  Conference.  The  diffi- 
culty arose  when  it  was  proposed  to  compose  the  court  of  a  restricted 
number  of  judges.  If  it  had  been  agreed  to  select  a  comparatively 
small  number  of  judges  from  among  international  jurists  of  the  great- 
est repute  without  considering  the  question  of  nationality,  the  Confer- 
ence could  have  undoubtedly,  although  with  difficulty  and  no  little  em- 
barrassment, made  the  choice.  This  principle,  however,  was  not 
accepted. 

Had  the  proposals  of  Messrs.  Bourgeois  and  Choate  found  favor, 
namely,  that,  after  determining  the  number  of  judges  to  form  the  court, 
each  nation  should  propose  the  name  of  a  judge,  and,  from  the  list  thus 
framed,  each  nation  should  vote  for  the  number  of  judges  the  court 
was  to  contain,  and  those  receiving  the  highest  number  of  votes  should 
be  elected,  the  court  would  have  been  constituted.  This  method,  how- 
ever, was  unsatisfactory  to  the  large  as  well  as  the  small  nations,  ap- 
parently because  the  large  nations  feared  that  they  might  be  out-voted 
and  the  small  nations  that  the  election  might  not  be  wholly  free.  The 
large  nations  wished  to  be  represented  permanently  in  the  court  and 


lo  AN  INTERNATIONAL  COURT  OF  JUSTICE 

proposed  to  the  small  nations  that,  while  their  judges  should  be  elected 
for  the  full  term,  they  should  only  serve  in  rotation  for  a  varying 
portion  of  the  time.  The  small  nations  refused  to  recognize  the  right 
of  the  large  nations  to  permanent  seats  in  the  court  or  to  accept  any 
method  of  constituting  it  which  debarred  them  in  fact,  if  not  in  theory, 
from  equality  of  representation.  In  view  of  these  difficulties  and  the 
impossibility  of  overcoming  them  in  the  short  time  at  the  disposal  of 
the  Conference,  the  Draft  Convention  for  the  establishment  of  the 
Court  of  Arbitral  Justice  was  adopted  with  the  omission  therefrom  of 
any  provisions  either  as  to  the  number  of  the  judges  or  as  to  the 
method  of  appointing  them.  It  recommended,  however,  to  the  sig- 
natory powers  "  the  adoption  of  the  project  .  .  .  of  a  Convention  for 
the  establishment  of  a  Court  of  Arbitral  Justice  and  putting  it  in  force 
as  soon  as  an  agreement  should  be  reached  upon  the  selection  of  the 
judges  and  the  constitution  of  the  court."  That  is  to  say,  the  con- 
stitution of  the  court  was  remitted  to  diplomatic  channels.  The  powers 
chiefly  concerned  in  the  introduction  of  the  court  and  its  institution  by 
the  Conference  intimated,  both  then  and  subsequently,  their  willingness 
to  constitute  the  tribunal  diplomatically.  For  example,  in  the  official 
report  on  the  Second  Hague  Conference,  issued  by  the  German  Gov- 
ernment shortly  after  the  adjournment  of  the  Conference,  Germany 
stated  its  readiness  to  cooperate  in  its  establishment  in  the  following 
measured  language : 

The  organization  of  such  an  arbitral  court  was  proposed  at  the 
Conference  by  the  United  States  of  America.  The  proposal 
sought,  as  far  as  possible,  to  facilitate  arbitration,  and  for  that 
purpose  to  create  a  permanent  universal  court  of  justice  composed 
in  a  definite  manner,  which  should  meet  each  year  at  The  Hague, 
in  order  to  decide,  free  of  cost,  all  controversies  submitted  to  it 
by  the  contracting  powers.  Such  an  organization  appeared  to  be  a 
thoroughly  appropriate  step,  which  met  also  the  purposes  which 
Germany  sought  to  attain.  The  German  delegation  therefore 
earnestly  supported  the  proposal,  and  in  cooperation  with  the 
American  and  British  delegations,  drafted  and  submitted  an  ade- 
quate proposition  to  the  Conference.  The  proposal  did  not,  how- 
ever, lead  to  the  conclusion  of  a  treaty,  for  the  reason  that  the 
members  of  the  Conference  could  not  agree  upon  the  manner 
of  composing  the  Court  of  Justice.  But,  in  accordance  with  the 
first  vcrii  contained  in  the  Final  Act,  the  Conference  recommended 
to  the  powers  to  accept  the  draft  based  upon  the  proposal  referred 
to,  as  soon  as  an  agreement  could  be  reached  in  regard  to  an  ap- 
propriate composition  of  the  court.  Germany  stands  ready  to 
cooperate  in  the  establishment  of  the  court. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  n 

After  a  sympathetic  account  of  the  proposed  court,  of  the  services 
it  would  render,  and  of  the  proceedings  of  the  Conference  in  regard  to 
it,  and  expressing  the  hope  that  the  court  would  be  shortly  estab- 
lished, the  French  delegation,  in  its  official  report,  insists  upon  the 
duty  of  the  various  states  to  carry  to  completion  the  work  begun  at 
The  Hague.    Thus : 

Each  of  the  states  must  exert  special  efforts  to  carry  out,  as  far 
as  possible,  the  voeux,  resolutions  or  recommendations  by  which 
the  Conference,  in  matters  upon  which  it  could  not  reach  a  con- 
clusion, has  emphatically  signified  its  desire  to  see  the  governments 
complete  its  work.  It  will  suffice  to  refer  to  the  negotiations  requi- 
site to  give  definitive  form  to  the  permanent  Court  of  Arbitral 
Justice,  whose  operation  depends  upon  an  agreement  regarding  the 
manner  of  selecting  the  judges. 

The  official  report  of  the  British  delegation  voices  its  regret  that  the 
Arbitral  Court  was  not  constituted  at  The  Hague  and  expresses  the 
hope  that  it  may  be  instituted.  "  We  can  not  but  hope,"  it  is  said, 
"  that  the  difficulties  which  we  have  been  unable  to  overcome  may  in 
the  end  be  surmounted,  and  that  our  labor  as  pioneers  may  in  the  end 
not  prove  entirely  fruitless." 

Finally,  and  for  the  sake  of  completeness  rather  than  for  any  doubt 
as  to  the  attitude  of  the  United  States,  the  following  paragraph  is 
quoted  from  the  official  report  of  the  American  delegation.  After 
briefly  explaining  the  nature  and  importance  of  the  proposed  court  and 
commenting  upon  its  important  provisions,  the  report  proceeds : 

It  is  evident  that  the  foundations  of  a  permanent  court  have 
been  broadly  and  firmly  laid;  that  the  organization,  jurisdiction 
and  procedure  have  been  drafted  and  recommended  in  the  form  of 
a  code  which  the  powers  or  any  number  of  them  may  accept  and, 
by  agreeing  upon  the  appointment  of  judges,  call  into  being,  a  court 
at  once  permanent  and  international.  A  little  time,  a  little 
patience,  and  the  great  work  is  accomplished. 

It  is  unnecessary  to  set  forth  in  detail  the  various  propositions  made 
for  this  purpose  by  the  United  States.  In  his  first  annual  message  to 
Congress,  after  the  adjournment  of  the  Conference,  the  President  said: 

Substantial  progress  was  also  made  toward  the  creation  of  a  per- 
manent judicial  tribunal  for  the  determination  of  international 
causes.  There  was  very  full  discussion  of  the  proposal  for  such 
a  court  and  a  general  agreement  was  finally  reached  in  favor  of 
its  creation.    The  Conference  recommended  to  the  signatory  pow- 


12  AN  INTERNATIONAL  COURT  OF  JUSTICE 

ers  the  adoption  of  a  draft  upon  which  it  agreed  for  the  organiza- 
tion of  the  court,  leaving  to  be  determined  only  the  method  by 
which  the  judges  would  be  selected.  This  remaining  unsettled 
question  is  plainly  one  which  time  and  good  temper  will  solve. 

Taking  advantage  of  the  meeting  of  the  Naval  Conference  at  Lon- 
don (December  4,  1908-February  26,  1909)  in  order  to  agree  upon 
unsettled  questions  of  prize  law  to  be  applied  by  the  International  Court 
of  Prize  when  it  was  constituted  and  in  operation,  the  Secretary  of 
State,  under  date  of  February  6,  1909,  instructed  the  American  dele- 
gates to  the  Conference,  as  appears  from  the  identic  circular  note  of 
October  18,  1909,  to  propose  to  this  Conference  to  invest  the  Prize 
Court  with  the  jurisdiction  of  the  Court  of  Arbitral  Justice.    Thus: 

In  order  to  confer  upon  the  Prize  Court  the  functions  of  an 
arbitral  court  contemplated  in  the  first  recommendation  of  the 
Final  Act  of  the  Second  Conference,  the  Department  proposes  the 
following  article  additional  to  the  draft  protocol  concerning  the 
Prize  Court,  next  to  the  last  paragraph  of  your  instructions. 

And  any  signatory  of  the  Convention  for  the  establishment  of 
the  Prize  Court  may  provide  further  in  the  act  of  ratification 
thereof  that  the  International  Court  of  Prize  shall  be  competent 
to  accept  jurisdiction  of  and  decide  any  case  arising  between  the 
signatories  of  this  proposed  article  submitted  to  it  for  arbitration, 
and  the  International  Prize  Court  shall  thereupon  accept  jurisdic- 
tion and  adopt  for  its  consideration  and  decision  of  the  case  the 
Draft  Convention  for  the  establishment  of  a  Court  of  Arbitral 
Justice  adopted  by  the  Second  Hague  Conference,  the  establish- 
ment of  which  was  recommended  by  the  powers  through  diplo- 
matic channels. 

Any  signatory  of  the  Convention  for  the  establishment  of  the 
International  Court  of  Prize  may  include  in  its  ratification  thereof 
the  proposed  article  and  become  entitled  to  the  benefits  thereof. 

The  Conference,  however,  deemed  it  more  advisable  to  prosecute 
through  diplomatic  channels  a  matter  of  such  magnitude.  The  De- 
partment on  March  5,  1909,  notified  the  countries  represented  at  the 
Naval  Conference  of  its  intention  to  prepare  and  transmit  an  identic 
circular  note  dealing  with  this  question,  and  on  October  18,  1909,  an 
elaborate  identic  circular  note  was  prepared  and  transmitted,  in  pur- 
suance of  such  notification,  to  the  powers  participating  in  the  Naval 
Conference.  The  answers  received  to  the  note  stated  a  general  willing- 
ness to  constitute  the  Court  of  Arbitral  Justice,  but  intimated  a  prefer- 
ence for  its  constitution  as  a  separate  and  independent  tribunal.  Three 
of  the  joint  proposers  of  the  Prize  Court  at  the  Second  Peace  Con- 


AN  INTERNATIONAL  COURT  OF  JUSTICE  13 

ference  suggested  a  meeting  of  duly  authorized  representatives  of  the 
proposers  of  that  convention  and,  in  pursuance  of  this  suggestion,  dele- 
gates of  the  four  powers  met  at  Paris  in  March,  1910,  and  drafted  a 
protocol  for  the  establishment  of  the  Court  of  Arbitral  Justice  by  means 
of  the  system  adopted  by  the  Prize  Court  Convention,  conditioned, 
however,  upon  the  ratification  of  the  original  Prize  Court  Convention 
and  the  additional  article  thereto  drafted  at  Paris  in  1910,  and 
conditioned  further  upon  the  adherence  of  eighteen  powers  to  the 
protocol  establishing  the  Court  of  Arbitral  Justice,  It  was  believed 
that  little  or  no  difficulty  would  be  experienced  in  securing  the  ac- 
ceptance of  the  additional  protocol  to  the  Prize  Court  Convention,  and 
it  has  in  fact  been  accepted  by  all  the  parties  to  the  original  convention. 
It  was  hoped,  indeed  expected,  that  the  convention  together  with  the 
additional  protocol  for  this  important  court  would  be  ratified  at  one 
and  the  same  time  and  in  the  near  future  by  a  sufficient  number  of 
powers  to  constitute  the  court,  so  that  the  four  powers  represented  at 
the  Paris  conference  of  1910  and  which  had  agreed  upon  a  draft  con- 
vention to  put  into  effect  the  Court  of  Arbitral  Justice,  could  within 
a  reasonable  time  transmit  the  said  draft  through  the  intermediary  of 
the  Netherland  Government  and  upon  the  request  of  the  United  States, 
to  the  powers  represented  at  the  Second  Peace  Conference.  A  year 
and  eight  months  have  passed  and,  although  the  Senate  of  the  United 
States  has  approved  the  original  Prize  Court  Convention,  the  additional 
protocol  modifying  its  procedure,  and  the  Declaration  of  London,  and 
the  President  stands  ready  to  deposit  the  ratifications  of  these  various 
instruments,  the  Prize  Court  has  not  been  agreed  to  by  a  sufficient 
number  of  states  to  insure  its  establishment  and  the  date  of  deposit- 
ing ratifications  has  not  been  fixed.  As  is  well  known,  the  Government 
of  Great  Britain  conditioned  its  acceptance  of  the  Prize  Court  Con- 
vention upon  the  acceptance  of  certain  principles  of  law  to  be  applied 
by  the  judges  of  the  Prize  Court.  For  this  purpose  Great  Britain 
invited  certain  maritime  powers  to  a  conference  which,  as  has  been  said, 
was  held  at  London  in  1908-9,  as  "  it  would  be  difficult,  if  not  impos- 
sible, for  his  Majesty's  Government  to  carry  the  legislation  necessary 
to  give  efifect  to  the  convention,  unless  they  could  assure  both  Houses 
of  the  British  Parliament  that  some  more  definite  understanding  had 
been  reached  as  to  the  rules  by  which  the  new  tribunal  would  be 
governed."  The  Declaration  of  London,  as  the  deliberations  of  the 
conference  are  called,  was  at  the  time  of  its  negotiation  apparently 
satisfactory  to  Great  Britain,  but  the  bill  embodying  the  legislation  nec- 
essary to  give  efifect  to  the  court  and  to  the  Declaration  has  failed  of 


r 


14  AN  INTERNATIONAL  COURT  OF  JUSTICE 

enactment,  and  it  is  impossible  for  a  foreign  government  to  determine 
whether  the  unfavorable  conditions  which  prevented  the  enactment  of 
the  necessary  legislation  still  exist,  or  to  form  an  opinion  as  to  the 
date  when  an  act  to  give  effect  to  the  Prize  Court  Convention  and 
to  the  Declaration  of  London  can  reasonably  be  expected  to  pass  the 
Parliament,  so  that  Great  Britain  can  be  in  a  position  to  approve  the 
Prize  Court  Convention,  the  additional  protocol  thereto,  and  to  deposit 
its  ratifications  thereof  at  The  Hague. 

In  view  of  these  uncertainties  and  in  view  also  of  the  fact  that  the 
United  States  has,  so  far  as  it  is  able,  met  the  conditions  upon  which 
the  Draft  Convention  for  the  establishment  of  the  Court  of  Arbitral 
Justice  was  to  be  transmitted  to  the  powers  represented  at  the  Second 
Peace  Conference,  the  Department  of  State  deems  it  advisable  to  con- 
sult the  parties  to  this  agreement,  in  order  to  see  if  it  be  not  possible  to 
proceed  with  the  establishment  of  the  Court  of  Arbitral  Justice,  with- 
out further  waiting  upon  the  ratification  of  the  Prize  Court  Convention. 
The  Court  of  Arbitral  Justice  was  subordinated  to  the  institution  of 
the  Prize  Court  in  order  that  its  establishment  should  not  be  injuriously 
affected  by  negotiations  for  the  establishment  of  the  Court  of  Arbitral 
Justice.  Another  reason  was  that,  inasmuch  as  the  four  powers  agreed 
to  recommend  to  the  nations  at  large  the  composition  of  the  Court 
of  Arbitral  Justice  by  the  method  accepted  by  Article  15  of  the  Prize 
Court  Convention,  it  was  highly  desirable  to  postpone  the  negotia- 
tions relating  to  the  Arbitral  Court  until  the  Prize  Court  had  been 
instituted  in  order  to  utilize  a  method  of  an  existing  court.  As,  how- 
ever, the  Prize  Court  Convention  has  not  been  ratified  and  inasmuch 
as  it  can  not  be  confidently  or  reasonably  predicted  when  the  Prize 
Court  Convention  will  be  approved  by  the  number  of  powers  requisite 
to  put  it  into  effect,  it  would  appear  that  the  reason  for  the  delay, 
however  advisable  it  may  have  been  at  the  time,  has  ceased  to  exist. 
Cessante  ratione  legis  cessat  et  ipsa  lex. 

In  the  judgment  of  the  Secretary  of  State,  these  circumstances  raise 
a  presumption  amounting  to  a  conviction,  that  the  time  has  come  to 
confer  with  the  Governments  of  Germany,  France  and  Great  Britain, 
in  order  to  see  if  steps  can  not  be  taken  in  the  immediate  future, 
either  to  put  into  effect  the  Court  of  Arbitral  Justice,  as  modified  by 
the  draft  convention  adopted  at  the  Paris  conference  of  1910,  as 
amended  by  the  subsequent  conference  at  The  Hague  on  July  25, 
1910,  or  to  consider  whether  they  and  the  other  powers  which  may 
be  favorable  to  the  institution  of  the  proposed  court  would  be  willing 
to  compose  the  court  by  a  smaller  number  of  judges  than  that  con- 


AN  INTERNATIONAL  COURT  OF  JUSTICE  15 

templated  by  the  draft  convention  of  July  25,  1910,  with  the  distinct 
understanding  that  the  court,  when  constituted,  would  be  temporary  in 
its  nature,  in  the  sense  that  the  establishment  of  a  larger  and  more  gen- 
eral tribunal  might  be  considered  at  the  next  Peace  Conference,  and 
that  no  attempt  should  be  made  to  persuade  those  powers  which 
may  be  opposed  to  its  institution  to  participate  in  its  creation.  Sup- 
posing that  the  powers  entitled  under  Article  15  of  the  Prize  Court 
Convention  should  desire  or  be  willing  to  constitute  the  court,  it  does 
not  seem  reasonable  that  the  powers  that  do  not  wish  to  cooperate  in 
its  establishment  should  prevent  the  powers  really  desiring  it  from  call- 
ing it  into  being.  Respect  for  the  powers  that  oppose  the  establish- 
ment of  the  court  by  means  of  Article  15  of  the  Prize  Court  Conven- 
tion can  not  reasonably  mean  that  the  powers  desiring  to  establish  the 
Court  of  Arbitral  Justice  by  the  method  of  the  Prize  Court  should  not 
be  at  liberty  to  negotiate  an  agreement  for  this  purpose.  The  only 
circumstance  which  it  is  conceived  should  militate  against  the  creation 
of  the  court  by  the  powers  entitled  to  permanent  representation  in 
accordance  with  the  method  of  the  Prize  Court,  is  that  its  institution 
would  tend  to  prevent  the  establishment  of  a  more  general  court  and 
thus  retard  the  cause  of  judicial  settlement.  But  it  is  difficult  to  see 
how  the  creation  of  the  court  by  a  limited  number  of  powers,  to  be  used 
by  them  for  the  judicial  determination  of  international  conflicts  of  a 
legal  nature  which  may  arise  between  them,  would  retard  the  forma- 
tion of  a  larger  and  more  general  tribunal,  especially  if  it  were  under- 
stood and  clearly  expressed  that  the  proposed  tribunal  is  established 
because  of  the  present  difficulty  in  constituting  a  larger  and  more 
general  one,  and  that  the  powers  undertaking  its  creation  state  at  the 
time  of  its  institution  their  willingness  to  cooperate  in  the  formation 
of  the  larger  tribunal  either  through  subsequent  diplomatic  negotia- 
tions, or  at  a  future  Peace  Conference. 

It  is  assuredly  inherent  in  sovereignty  that  any  number  of  powers 
may  agree  to  establish  a  tribunal  for  themselves  unless  they  have 
expressly  renounced  the  right  to  do  so,  and  no  renunciation  of  this  kind 
is  known  to  exist.  The  Convention  for  the  establishment  of  a  Court 
of  Arbitral  Justice  adopted  at  The  Hague  did  not  specify  any  number 
of  powers  as  necessary  to  its  creation,  and  the  recommendation  to  the 
powers  adopted  by  the  Conference  to  establish  the  court  through  diplo- 
matic channels  makes  no  mention  of  the  number  of  powers  which 
might  be  requisite.  In  this  respect  the  draft  convention  differed  from 
that  of  the  Prize  Court,  which  states  in  Article  52  that  "  the  deposit  of 
the  ratifications  shall  take  place  ...  if  the  powers  which  are  ready 


i6  AN  INTERNATIONAL  COURT  OF  JUSTICE 

to  ratify  furnish  nine  judges  and  nine  deputy  judges  to  the  court, 
quaHfied  validly  to  constitute  the  court.  If  not,  the  deposit  shall  be 
postponed  until  this  condition  is  fulfilled." 

That  this  interpretation  is  correct  is  evident  from  Article  54,  which 
declares  that  the  present  convention  "  shall  come  into  force  six  months 
from  the  deposit  of  the  ratifications  contemplated  in  Article  52."  It 
should  further  be  stated  that  it  was  contemplated  that  sufficient  powers 
might  not  ratify  the  convention  to  furnish  the  fifteen  judges  of  which 
it  was  to  consist,  as  Article  56  provides  that  "  when  the  total  number 
is  less  than  eleven,  seven  judges  form  a  quorum."  There  is,  however, 
another  reason  for  believing  that  the  cooperation  of  no  definite  num- 
ber of  powers  is  necessary  to  the  institution  of  the  Arbitral  Court, 
because  the  text,  as  finally  adopted,  is  silent  on  this  question ;  the  num- 
ber of  judges  of  which  it  is  to  consist  is  not  specified,  and,  as  pre- 
viously stated,  the  recommendation  adopted  by  the  Conference  for  the 
constitution  of  the  court  through  diplomatic  channels  does  not  make  its 
institution  depend  upon  the  cooperation  of  any  definite  number.  Its 
establishment  is  conditioned  solely  upon  an  agreement  as  to  the  choice 
of  the  judges  and  the  constitution  of  the  court.  It  would  seem  to  be 
clear,  therefore,  that  any  number  of  powers  can  agree  upon  the  choice 
of  judges  and  the  constitution  of  the  court,  in  so  far  as  they  are  con- 
cerned, and  when  this  is  done,  the  court  is  established  for  them  with- 
out violating  either  the  letter  or  spirit  of  the  draft  convention  or  recom- 
mendation. Its  constitution,  therefore,  would  seem  to  depend  upon  the 
willingness  of  a  certain  number  of  powers  to  constitute  it. 

The  one  objection  which  might  be  made  to  the  creation  of  the  court 
by  a  limited  number  of  powers  which,  if  well  founded,  would  prevent 
the  United  States  from  considering,  much  less  from  making  the  pro- 
posal, is  the  criticism  that  its  establishment  under  these  circumstances 
and  conditions  would  retard  the  formation  of  a  larger  and  more  gen- 
eral tribunal.  But  this  objection,  even  if  made,  would  be  more  specious 
than  real. 

(^  It  was  commonly  said  that  arbitration  is  suited  for  the  adjustment 
of  trifling  or  comparatively  unimportant  questions,  but  that  larger 
issues  could  not  be  settled  by  this  means.  The  arbitration  of  the 
Alabama  claims  has  deprived  this  objection  of  much  of  its  supposed 
weight,  and  we  have  seen  within  the  last  two  years  Great  Britain  and 
the  United  States  submitting  questions  of  a  sovereign  nature  to  the 
so-called  Permanent  Court  at  The  Hague.  A  comparatively  short  and 
highly  successful  series  of  arbitrations  has  convinced  nations  by  actual 
experience  that  arbitration  of  important  questions  is  not  only  possible 


AN  INTERNATIONAL  COURT  OF  JUSTICE  17 

but  advisable.  It  is  not  too  much  to  suppose  that  the  institution  of  a 
court  of  restricted  numbers  for  the  judicial  determination  of  con- 
troversies of  a  legal  nature  which  may  arise  among  the  contracting 
parties  will  furnish  an  equally  instructive  object  lesson  to  the  nations 
at  large  advancing  at  one  and  the  same  time  the  cause  of  judicial 
settlement  and  the  institution  of  a  permanent  court,  in  order  that  the 
nations  at  large  might  have  the  benefit  of  its  just  and  impartial  de- 
cisions. The  beneficent  operations  of  the  court,  although  in  the  first 
instance  restricted  to  the  parties  which  have  actually  instituted  it, 
might  be  extended  by  a  provision  that  a  controversy  between  a  con- 
tracting and  a  non-contracting  state  might  be,  with  the  consent  of  the 
non-contracting  party,  submitted  to  the  court  for  determination,  and  a 
judge  of  the  non-contracting  state  might  be  admitted  ad  hoc.  Again, 
the  contracting  powers  might  agree  that  non-contracting  powers  might 
avail  themselves  of  the  court  for  the  adjudication  of  their  contro- 
versies, and  that  the  membership  of  the  court  might  be  increased  by 
the  admission  of  a  judge  of  each  of  the  parties  in  litigation  for  the 
decision  of  the  case,  if  this  were  desired  by  them.  It  is  believed  and 
confidently  asserted  that  the  establishment  of  the  court  for  a  limited 
number  of  powers,  that  is  to  say,  by  the  powers  that  may  wish  it, 
would  advance,  not  retard,  the  creation  of  a  more  general  court,  and 
would  at  one  and  the  same  time  advance  the  cause  of  judicial  settle- 
ment, and  that  the  experience  acquired  by  its  creation  and  operation 
would  be  useful  in  any  subsequent  negotiations  for  the  establishment 
of  a  larger  Court  of  Arbitral  Justice. 

For  these  reasons  the  Department  of  State  proposes  that  the  question 
of  the  Arbitral  Court  and  its  establishment  in  the  immediate  future  be 
taken  up  and  considered  by  the  powers  which  negotiated  the  draft 
convention  of  March,  1910,  in  the  hope  that  an  agreement  may  be 
reached  without  further  delay  upon  this  important  question,  which, 
in  the  opinion  of  the  Secretary  of  State,  vitally  concerns  the  main- 
tenance of  international  peace. 


i8  AN  INTERNATIONAL  COURT  OF  JUSTICE 


Appendix  No.  2 

Draft  of  an  Identic  Circular  Note  proposed  to  and  Approved  by 
Secretary  of  State  Knox,  to  be  sent  to  the  American  Ambassadors 
at  London,  Berlin,  and  Paris 

Sir: 

I  have  the  honor  to  confirm  my  cable  of  .  .  .  concerning  the  estab- 
lishment of  a  Court  of  Arbitral  Justice,  the  contents  of  which  you 
were  directed  on  ...  to  communicate  to  the  Secretary-Minister  of 
Foreign  Affairs.  The  instruction  which  you  have  received,  and  the 
contents  of  which  you  have  communicated  to  the  Secretary-Minister 
of  Foreign  Affairs  in  accordance  with  the  instruction  of  .  .  .  was 
intended  to  show  the  deep  and  abiding  interest  which  the  present  Ad- 
ministration takes  in  the  establishment  of  a  Court  of  Arbitral  Justice, 
the  judges  of  which  should  be  known  in  advance  of  prospective  litiga- 
tion and  who,  from  their  training  and  experience,  would,  in  the  de- 
cision of  international  controversies,  act  under  a  sense  of  judicial 
responsibility.  This  Government  is  convinced  that  the  apparent  re- 
luctance of  governments  to  submit  to  arbitration  their  international 
controversies  of  a  legal  as  distinct  from  a  political  nature  is  due  in 
large  measure  to  the  fear  that  the  controversies  in  question  will  not  be 
decided  solely  by  the  principles  of  law,  which  the  governments  in  dis- 
pute believe  to  be  applicable  to  and  determinative  of  the  cases  in 
question,  but  that  a  praiseworthy  desire  on  the  part  of  the  arbiters 
to  settle  the  questions  without  wounding  the  susceptibilities  of  the 
parties  in  controversy  leads  naturally  and  almost  inevitably  to  a  com- 
promise of  conflicting  interests,  in  which  each  party  obtains  a  formal 
recognition  of  some  of  its  contentions.  This  view  of  the  question 
receives  support  from  Article  37  of  the  Convention  for  the  pacific 
settlement  of  international  disputes  of  October  18,  1907,  which  pro- 
vides that  "  international  arbitration  has  for  its  object  the  settlement 
of  disputes  between  states  by  judges  of  their  own  choice  and  on  the 
basis  of  respect  for  law."  Elements  may  well  enter  into  the  choice  of 
judges  for  a  particular  case,  which  would  be  absent  if  the  judges  con- 
stituting a  permanent  court  were  chosen  in  advance  of  litigation,  and, 
without  impugning  the  integrity  of  the  judges  chosen  for  a  particular 
occasion,  it  would  seem  that  the  impartiality  which  is  so  unnecessary  in 
judicial  proceedings  would  be  better  safeguarded  by  an  appointment 


AN  INTERNATIONAL  COURT  OF  JUSTICE  19 

long  in  advance  of  the  controversy  which  they  were  called  upon  to 
decide. 

In  the  next  place,  it  will  be  noted  that  the  judges  contemplated  by 
Article  37  are  to  settle  disputes  "  on  the  basis  of  respect  for  law."  This 
expression  may  mean  that  principles  of  law  are  to  be  applied  in  the 
settlement  of  the  controversies,  but  it  does  necessarily  and  unequivo- 
cally mean  that  the  decision  is  to  be  singly  and  solely  in  accordance 
with  and  by  the  application  of  principles  of  law,  which  are  really 
determinative  of  the  question. 

The  fundamental  purpose  of  the  convention  is  to  settle  international 
differences  which  diplomacy  has  failed  to  adjust,  and  it  is  frequently 
stated  that  arbitration,  as  understood  and  practiced,  is  a  continuation 
of  diplomatic  procedure.  The  principle  of  give  and  take  is  as  appro- 
priate in  diplomatic  adjustment  as  it  is  inappropriate  in  proceedings 
which  are  claimed  to  be  judicial  or  on  the  basis  of  respect  for 
law. 

In  pointing  out  defects  in  the  present  method  of  peaceable  settle- 
ment of  international  disputes,  my  purpose  is  not  to  condemn  a  system 
which  has  rendered  very  great  services  to  nations  in  controversy  and 
is  in  itself  a  legitimate  triumph  of  our  modern  civilization,  but  rather 
to  suggest  that  more  perfect  machinery  for  the  peaceful  settlement  of 
international  disputes  may  be  devised,  which  will  be  free  from  these 
defects,  although  the  proposed  machinery  may  be,  as  is  the  case  with 
human  invention,  subject  to  legitimate  criticism  of  a  different  nature. 
Whether  this  be  so  or  not  experience  alone  can  decide. 

This  Government  believes  that  arbitration  to  maintain  itself  in  the 
practice  of  nations,  must  be  converted  into  a  judicial  remedy,  that  the 
temporary  tribunal  organized  for  the  determination  of  a  particular 
case  shall  be  replaced  by  a  permanent  tribunal  for  the  trial  of  any 
and  all  cases  of  a  legal  nature,  which  may  be  presented  to  it,  and  that 
principles  of  law  and  justice  may  be  as  impartially  applied  in  inter- 
national tribunals  as  is  fortunately  the  case  in  the  national  courts  of 
civilized  countries ;  that  the  arbiters  acting  under  a  sense  of  diplo- 
matic standards  of  conduct  shall  make  way  for  judges  acting  under  a 
sense  of  judicial  responsibility. 

These  reasons  for  the  development  of  arbitration  into  a  judicial 
system  and  the  establishment  of  a  permanent  court  for  the  judicial 
settlement  of  international  controversies  are  as  applicable  to  present 
conditions  as  they  were  in  the  year  1907,  when  the  Second  Hague 
Peace  Conference  met.  They  were  enumerated  in  the  instructions  to 
the  American  delegation,  from  which  a  passage  deserves  quotation : 


20  AN  INTERNATIONAL  COURT  OF  JUSTICE 

The  method  (it  is  said)  in  which  arbitration  can  be  made  more 
effective,  so  that  nations  may  be  more  ready  to  have  recourse  to 
it  voluntarily  and  to  enter  into  treaties  by  which  they  bind  them- 
selves to  submit  to  it,  is  indicated  by  observation  of  the  weakness 
of  the  system  now  apparent.  There  can  be  no  doubt  that  the  prin- 
cipal objection  to  arbitration  rests  not  upon  the  unwillingness  of 
nations  to  submit  their  controversies  to  impartial  arbitration,  but 
upon  an  apprehension  that  the  arbitrations  to  which  they  submit 
may  not  be  impartial.  It  has  been  a  very  general  practice  for 
arbitrators  to  act,  not  as  judges  deciding  questions  of  fact  and 
law  upon  the  record  before  them  under  a  sense  of  judicial  respon- 
sibility, but  as  negotiators  effecting  settlements  of  the  questions 
brought  before  them  in  accordance  with  the  traditions  and  usages 
and  subject  to  all  the  considerations  and  influences  which  affect 
diplomatic  agents.  The  two  methods  are  radically  different,  pro- 
ceed upon  dift"erent  standards  of  honorable  obligation,  and  fre- 
quently lead  to  widely  differing  results.  It  very  frequently  hap- 
pens that  a  nation  which  would  be  very  willing  to  submit  its  dif- 
ferences to  an  impartial  judicial  determination,  is  unwilling  to 
subject  them  to  this  kind  of  diplomatic  process. 

To  this  statement  of  the  problem,  which  carries  conviction  without 
the  need  of  argument,  additions  may  be  made  without  proceeding  be- 
yond the  bounds  of  reasonable  criticism.  It  is  to  be  doubted  whether 
nations  would  be  willing  to  continue  in  the  long  run  to  submit  their 
controversies  of  a  legal  nature  to  diplomatic  adjustment  of  arbiters, 
however  enlightened  and  honest,  for,  if  the  adjustment  is  to  be  diplo- 
matic rather  than  judicial,  it  is  to  be  apprehended  that  they  will  prefer, 
and  properly  so,  to  intrust  the  diplomatic  negotiation  of  differences  to 
their  diplomatic  agents,  who  act  upon  instructions  from  the  foreign 
offices  which  have  been  organized  to  conduct  the  international  rela- 
tions of  the  various  countries.  If  negotiation  instead  of  judicial  deci- 
sion is  to  prevail,  nations  will  no  doubt  prefer,  should  direct  negotia- 
tions fail,  to  resort  to  good  offices  and  mediation  or,  in  appropriate 
cases,  to  constitute  commissions  of  inquiry,  which  will  not  supersede 
but  rather  supplement  the  action  of  diplomacy.  In  the  next  place,  a 
diplomatic  adjustment  of  controversies  through  arbitration  is  open 
to  the  criticism  that  the  nations  can  but  imperfectly  forecast  the  prob- 
able action  of  arbiters,  even  although  they  be  of  their  own  choice,  and 
would  be  inclined  to  prefer  their  own  agents,  upon  whose  zeal  and 
devotion  they  have  a  right  to  rely,  whereas  in  a  judicial  proceeding  the 
nations  in  controversy  can  form  a  clear  notion  in  advance  of  the  con- 
troversy of  the  principles  of  law  which  they  believe  to  be  applicable 
to  the  case  and  upon  whose  recognition  and  application  the  case  is 


AN  INTERNATIONAL  COURT  OF  JUSTICE  21 

adjudged.  They  can,  therefore,  with  a  reasonable  degree  of  certainty, 
predict  the  judgment  of  the  tribunal  in  advance  of  its  decision,  as  well 
as  the  consequences  which  will  necessarily  result  from  it.  It  is  be- 
lieved that  nations  would,  therefore,  be  more  willing  to  submit  their 
dififerences  of  a  legal  nature,  if  they  were  assured  in  advance  by  the 
character  of  the  judges  composing  the  court  that  the  judgment, 
whether  favorable  or  unfavorable  to  their  respective  contentions,  would 
be  based  upon  the  passionless  application  of  principles  of  law,  with 
which  they,  as  well  as  the  judges,  are  familiar. 

In  another  passage  of  the  instructions,  the  remedy  was  indicated : 
"  If  there  could  be,"  it  is  said,  "  a  tribunal  which  would  pass  upon 
questions  between  nations  with  the  same  impartial  and  impersonal 
judgment  that  the  Supreme  Court  of  the  United  States  gives  to  ques- 
tions arising  between  citizens  of  the  different  states,  or  between  foreign 
citizens  and  the  citizens  of  the  United  States,  there  can  be  no  i 
doubt  that  nations  would  be  much  more  ready  to  submit  their  con-  ; 
troversies  to  its  decision  than  they  are  now  to  take  the  chances  of 
arbitration."  Therefore,  the  American  delegation  was  instructed  to 
propose  "  a  permanent  tribunal  composed  of  judges  who  are  judicial 
officers  and  nothing  else,  who  are  paid  adequate  salaries,  who  have 
no  other  occupation,  and  who  will  devote  their  entire  time  to  the 
trial  and  decision  of  international  causes  by  judicial  methods  and  under 
a  sense  of  judicial  responsibility.  These  judges  should  be  so  selected 
from  the  different  countries  that  the  different  systems  of  law  and 
procedure  and  the  principal  languages  shall  be  fairly  represented.  The 
court  should  be  made  of  such  dignity,  consideration,  and  rank  that 
the  best  and  ablest  jurist  will  accept  appointment  to  it,  and  that  the 
whole  world  will  have  absolute  confidence  in  its  judgments." 

It  is  a  matter  of  common  knowledge  that  in  pursuance  of  these  in- 
structions the  American  delegation  proposed  at  the  Second  Hague  Con- 
ference the  creation  of  a  truly  permanent  tribunal,  that  the  delegations 
of  Germany  and  Great  Britain  joined  in  the  proposal,  and  that,  after 
much  deliberation  and  discussion,  the  draft  convention  of  Germany, 
the  United  States  and  Great  Britain  for  the  creation  of  a  Court  of 
Arbitral  Justice  was  adopted  by  the  Conference.  It  is  unfortunate  that, 
owing  to  the  short  time  at  the  disposal  of  the  Conference  and  the  fur- 
ther fact  that  the  delegates  were  not  familiar  in  advance  of  its  meeting 
with  the  intention  of  any  government  to  propose  such  a  tribunal,  an 
agreement  was  not  reached  upon  a  method  of  composing  the  court 
which  was  acceptable  to  the  powers  generally.  It  is.  however,  a  con- 
solation to  the  believers  in  the  judicial  settlement  of  international  dis- 


22  AN  INTERNATIONAL  COURT  OF  JUSTICE 

putes  that  not  only  the  principle  of  such  determination,  but  also  a  con- 
vention for  its  realization  was  adopted,  with  the  recommendation  that 
it  be  put  "  into  effect  as  soon  as  an  agreement  shall  have  been  reached 
as  to  the  choice  of  the  judges  and  the  constitution  of  the  court." 

Since  the  adjournment  of  the  Conference  the  advisability  and  indeed 
the  necessity  of  the  establishment  of  such  a  court,  in  order  to  make 
arbitration  a  judicial  and  therefore  a  more  effective  remedy,  have  been 
discussed  by  writers  on  international  law,  who  have  expressed  them- 
selves overwhelmingly  in  favor  of  its  institution,  and  by  learned  bodies 
in  various  parts  of  the  world — more  especially  by  the  Institute  of  Inter- 
national Law,  which  at  a  recent  session,  at  which  publicists  from  four- 
teen countries  were  present,  recommended  its  establishment  without 
a  dissenting  voice, — and  diplomatic  negotiations  have  been  undertaken 
to  reach  an  agreement,  to  quote  the  language  of  The  Hague  Confer- 
ence, "  as  to  the  choice  of  the  judges  and  the  constitution  of  the  court," 
in  order  that  it  may  be  put  into  effect  and,  by  successful  operation, 
justify  the  hopes  of  its  proposers  by  the  ordinary,  impersonal,  and  pas- 
sionless determination  of  legal  controversies,  which,  often  trifling  and 
insignificant  in  their  beginnings,  assume  political  importance,  embitter 
diplomatic  relations,  and  jeopardize  the  maintenance  of  general  peace, 
which  is,  as  was  said  by  the  enlightened  Czar  of  Russia  in  his  call  for 
the  First  Hague  Conference,  "  the  ideal  towards  which  the  endeavors 
of  all  governments  should  be  directed." 

It  is  not  the  purpose  of  the  present  instruction  to  dwell  upon  the 
benefits  which  would  necessarily  result  from  the  creation  and  success- 
ful operation  of  the  Court  of  Arbitral  Justice,  as  these  benefits  are 
universally  recognized  and  admitted  and  are  as  familiar  to  the  world 
at  large  as  a  twice-told  tale.  The  purpose  of  this  instruction  is  to  show 
the  continued  and  sustained  interest  which  the  people  of  the  United 
States  have  taken  in  the  judicial  settlement  of  international  disputes 
since  the  first  days  of  the  Republic,  and  the  earnest  desire  of  the  Presi- 
dent and  of  the  Secretary  of  State  to  crown  their  labors  in  behalf  of 
international  peace  by  the  creation  of  an  international  tribunal  which, 
if  it  did  not  include  all  the  nations  of  the  world,  nevertheless  may 
serve  as  a  court  to  those  countries  which  are  willing  to  cooperate  in  its 
institution  and  share  in  the  benefits  of  its  operation. 

In  a  recent  address  of  the  President  there  appears  a  passage,  which 
merits  the  careful  and  thoughtful  attention  of  the  friends  of  peace  and 
shows  not  only  his  personal  interest  in  the  establishment  of  an  inter- 
national court,  but  calls  attention  to  the  measures  which  his  Adminis- 
tration has  taken  to  secure  its  establishment. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  23 

I  am  strongly  convinced  (he  said)  that  the  best  method  of  ulti- 
mately securing  disarmament  is  the  establishment  of  an  interna- 
tional court  and  the  development  of  a  code  of  international  equity 
which  nations  will  recognize  as  affording  a  better  method  of  set- 
tling international  controversies  than  war.  We  must  have  some 
method  of  settling  issues  between  nations,  and  if  we  do  not  have 
arbitration,  we  shall  have  war.  Of  course  the  awful  results  of 
war  with  its  modern  armaments  and  frightful  cost  of  life  and 
treasure,  and  its  inevitable  shaking  of  dynasties  and  governments, 
have  made  nations  more  chary  of  resort  to  the  sword  than  ever 
before ;  and  the  present,  therefore,  because  of  this,  would  seem  to 
be  an  excellent  time  for  pressing  the  substitution  of  courts  for 
force. 

I  am  glad  to  come  here  and  to  give  my  voice  in  favor  of  the  es- 
tablishment of  a  permanent  international  court.  I  sincerely  hope 
that  the  negotiations  which  Secretary  Knox  has  initiated  in  favor 
of  an  International  Prize  Court — after  the  establishment  of  that 
court — will  involve  the  enlargement  of  that  court  into  a  general 
arbitral  court  for  international  matters.  It  is  quite  likely  that  the 
provisions  for  the  constitution  of  the  Arbitral  Court  will  have  to 
be  different  somewhat  from  those  that  govern  the  selection  of 
members  of  the  Prize  Court,  but  I  am  glad  to  think  that  the  two 
movements  are  in  the  same  direction  and  are  both  likely  to  be 
successful. 

In  pursuance  of  the  President's  desire  so  clearly  expressed  in  the 
above  quotation,  the  Department  of  State  has  decided  to  continue  and, 
if  possible,  to  carry  to  successful  completion  the  negotiations  concern- 
ing the  establishment  of  the  Permanent  Court  of  Arbitral  Justice. 
While  recognizing  that  certain  modifications  of  the  draft  convention 
may  be  necessary  and  that  but  a  limited  number  of  powers  may  be  will- 
ing to  participate  in  its  creation,  nevertheless  the  agreement  of  even  a 
smaller  number  of  powers  than  that  originally  contemplated  would 
create  a  court  for  those  so  participating,  and  the  successful  operation 
of  the  court  thus  constituted  would  justify  its  creation  and  would  go 
far  to  persuade  even  those  who  have  heretofore  doubted  its  feasibility 
either  to  claim  its  benefits  by  adhering  to  the  agreement  which  calls  it 
into  being,  or  would  lead  to  its  modification  by  subsequent  negotiations, 
preferably  at  a  future  conference  at  The  Hague,  so  that  all  countries 
which  recognize  and  apply  principles  of  international  law  in  their 
mutual  relations  might  participate,  to  quote  the  President's  words,  "  in 
the  enlargement  of  that  court  into  a  general  arbitral  court  for  inter- 
national matters."  For  this  purpose  the  Department  of  State  has 
determined  to  send  a  duly  accredited  representative  to  discuss  the  basis 
upon  which  such  a  tribunal  could  be  created  and,  if  possible,  to  agree 


24  AN  INTERNATIONAL  COURT  OF  JUSTICE 

upon  a  convention  for  its  establishment.  The  Department  has  selected 
James  Brown  Scott,  Esq.,  technical  delegate  of  the  United  States 
to  the  Second  Hague  Conference  and  formerly  Solicitor  for  the 
Department  of  State,  who  is  familiar  with  the  proceedings  of  the 
Conference  at  which  the  court  was  proposed  and  who  negotiated  on 
behalf  of  the  United  States  the  agreement  with  representatives  of 
Germany,  France  and  Great  Britain  for  the  institution  of  the  Court 
of  Arbitral  Justice. 

You  will  communicate  a  copy  of  this  instruction  and  the  inclosed 
memorandum  to  his  Majesty's  Principal  Secretary  of  State  for  For- 
eign Affairs  (the  Minister  of  Foreign  Affairs),  and  in  so  doing  you 
will  assure  him  of  the  great  personal  desire  of  the  President  and  the 
Secretary  of  State  that  the  present  Administration  may,  through  his 
cooperation,  be  enabled  to  carry  to  successful  completion  the  negotia- 
tions which  it  began  in  the  first  months  of  its  existence  and  which 
have  occupied  so  large  a  part  of  the  thought  and  attention  of  both  the 
President  and  the  Secretary  of  State. 


Memorandum  of  James  Brown  Scott,  accompanying  his  Letter  of 
January  12,  1914,  to  the  Netherland  Minister  of  Foreign  Af- 
fairs, proposing  the  EstabHshment  of  a  Court  of  Arbitral  Jus- 
tice by  and  for  Germany,  the  United  States,  Austria-Hungary, 
France,  Great  Britain,  Italy,  Japan,  the  Netherlands  and  Russia 

The  proposal  to  establish  an  international  court  for  the  settlement  Burden  of 
of  disputes  between  nations  is  far  from  new,  and  the  arguments  ad-  fnnovaton" 
vanced  for  it  by  the  enlightened  of  all  countries  that  make  pretense  to 
civilization  are  many  and  varied,  and  are  so  well  known  that  they  have 
become,  as  it  were,  common  property.  As,  however,  it  is  incumbent 
upon  anybody  who  proposes  a  change  in  existing  conditions  to  justify 
the  change  thus  assuming,  to  use  a  familiar  expression,  the  burden  of 
proof,  it  may  be  considered  necessary,  or  at  least  advisable,  to  show 
some  of  the  defects  of  the  so-called  Permanent  Court  of  Arbitration 
and  some  of  the  services  that  a  truly  permanent  international  court 
may  reasonably  be  expected  to  render  even  although  the  undersigned 
should  merely  restate  opinions  generally  held  by  leaders  of  thought, 
without  contributing  anything  of  his  own  to  advance  the  great  cause 
of  peaceable  settlement. 

Reasonable  people  are  generally  agreed  that  differences  between  Different  kinds 
nations,  just  as  quarrels  between  individuals,  should  be  settled  peace-  settlement, 
ably,  and  much  progress  has  been  made  in  the  past  few  years  toward 
peaceable  settlement.  A  public  sentiment,  how'ever  feeble,  and  inade- 
quate it  may  be,  has  been  created  in  favor  of  such  settlement  in  the 
different  countries  which,  taken  together,  make  up  the  society  of 
nations ;  and  many  agencies  fortunately  exist  which  facilitate  and  render 
possible  the  friendly  adjustment  of  disputes  between  nations.  Minis- 
tries of  foreign  affairs  have  come  into  being  and  exist  in  every  country, 
and  are  able,  with  time  and  patience,  and  with  much  good-will  and 
kindly  concession,  to  settle  through  diplomatic  negotiation  differences 
which  in  times  past  would  have  led  to  war.  Where  diplomacy  has 
failed  to  adjust  international  controversies,  good  offices  and  mediation 
have  succeeded ;  friendly  composition,  and  arbitration,  particularly  the 
latter,  have  been  resorted  to,  and  not  in  vain,  to  straighten  out  the 
tangled  threads  of  diplomacy;  commissions  of  inquiry  have  been 
formed  to  find  facts,  and  by  so  doing  have  either  settled  the  dispute, 
or  have  powerfully  contributed  to  its  adjustment. 

25 


26 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


Future  of 
arbitration. 


Experience 
of  nations 
with 
arbitration. 


It  would  be  foreign  to  the  present  purpose  to  dwell  upon  any  of  these 
peaceful  agencies,  which  have  been  tried  and  not  found  wanting  when- 
ever they  have  been  used  in  good  faith.  This  memorandum  is  in- 
tended rather  to  show  the  services  which  a  new  method  of  peaceful 
settlement  would  render  to  the  cause  of  international  peace.  The 
newer  method  to  which  reference  is  made  is  the  judicial  settlement  of 
international  disputes;  and  it  is  a  fact  that  very  many  people,  whose 
opinions  are  entitled  to  the  greatest  respect,  believe  not  only  that  the 
future  of  arbitration  is  conditioned  upon  its  becoming  a  judicial  rem- 
edy, but  also  that  the  effective  and  satisfactory  settlement  of  inter- 
national differences  of  a  justiciable  nature  depends  upon  the  creation 
of  an  international  tribunal,  composed  of  judges  acting  under  a  sense 
of  judicial  responsibility,  which  shall  do  for  the  world  at  large  what 
national  courts  of  justice  have  done  for  individuals  within  national 
lines. 

It  is  not  necessary  at  the  present  day  to  advocate  arbitration, 
although  it  is,  unfortunately,  necessary  to  persuade  countries  in  con- 
troversy to  resort  to  it.  Since  its  formal  re-entry  ^  into  the  practice  of 
nations,  by  means  of  the  Jay  treaty  of  1794,  and  the  unexpected  suc- 
cess of  the  mixed  commission  organized  under  Article  7  of  that  treaty, 
there  have  been  some  200  or  more  international  differences,  often  in- 
volving many  claims,  settled  by  mixed  commissions  or  temporary  tribu- 
nals, formed  for  the  trial  of  the  case  or  cases,  and  passing  out  of 
existence  with  the  adjustment  of  the  dispute  or  disputes.  Since  the 
creation  of  the  so-called  Permanent  Court  of  Arbitration  by  the  First 
Hague  Peace  Conference,  there  have  been  a  dozen  conflicts  settled 
by  special  tribunals  whose  members  have  been  selected  from  the  panel 
of  judges  likewise  devised  by  the  First  Peace  Conference.  These 
tribunals,  like  the  mixed  commissions,  pass  out  of  existence  with  the 
decision  of  each  particular  case.  Nations  have  therefore  had,  it  would 
seem,  plenty  of  experience  in  order  to  determine  whether  or  not  the 
arbitral  method  of  peaceful  adjustment  is  practicable;  and  it  is  believed 

'  The  great  German  publicist,  Georg  Friedrich  von  Martens,  justly  regarded 
as  one  of  the  founders  of  international  law,  writing  in  the  period  of  the  French 
Revolution  and  of  the  Empire,  said  of  arbitration  that  "  this  measure,  much  used 
during  the  whole  of  the  Middle  Ages,  has  not  been  entirely  abandoned  up  to  the 
present  day,  but  the  examples  of  arbitration  offered  and  accepted  have  become 
rare  and  more  rare  from  an  experience  of  the  drawbacks  which  seem  to  be 
inseparable  from  this  method,  which  is  ordinarily  insufficient,  especially  because 
of  the  lack  of  an  executive  power."  Precis  du  Droit  des  Gens,  3d  ed.  1821,  p.  318. 

Kliiber,  likewise  a  German  publicist  of  distinction,  writing  somewhat  later 
in  the  same  stormy  period,  said  truly  enough  that  "  this  method  has  been 
neglected  for  several  centuries."  Droit  des  gens  moderne  de  I'Europe,  1819, 
Stuttgart,  §318,  p.  494. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  27 

that  a  nation  would  hesitate  to  maintain  that  this  method  which  has 
"  won  its  spurs,"  to  use  a  miUtary  expression,  is  not  practicable.  But 
a  method  may  well  be  practicable  and  yet  not  be  adequate ;  or  it  may 
be  practicable  for  one  class  of  cases,  and  ill-suited  for  a  different  class. 
It  was  to  be  expected,  and  the  expected  has  happened  in  this  instance, 
that  the  arbitral  awards  of  the  past  century  would  be  criticised  by 
citizens  or  subjects  of  the  losing  country.  The  awards  have  also 
been  questioned  by  enlightened  publicists,  whose  countries  were  not 
parties  to  the  proceedings.  The  criticism  has  been  severe,  perhaps 
unjustifiable  at  times;  but  it  is  through  criticism  that  defects  are  dis- 
covered, and  it  is  through  criticism  that  defects  are  remedied. 

A  single  example  of  the  criticism  of  which  the  books  are  full  may  Criticism  of 

.  .  ,  .  f  ...  .,,,,..  ,  arbitral    awards. 

be  mentioned,  as  it  comes  from  a  distinguished  pubhcist  whose  country 
has  appeared  but  once  before  the  Permanent  Court,  without,  however, 
selecting  an  arbiter,  and  which,  as  the  seat  of  the  Court,  has,  it  is 
believed,  the  greatest  interest  in  the  success  of  arbitration. 

In  an  exceedingly  interesting  and  suggestive  article  on  the  Future  of 
International  Public  Law,  Mr.  de  Louter,  until  recently  professor  of 
international  law  in  the  University  of  Utrecht,  felt  justified  in  citing 
the  following  three  arbitral  decisions  as  miscarriages  of  justice: 

In  the  first  place  we  may  cite  the  arbitral  award  of  Mr.  F.  de 
Martens  of  February  13,  1897,  in  the  affair  of  the  Costa  Rica 
Packet  between  the  Netherlands  and  Great  Britain.  In  the  next 
place  we  may  mention  the  decision  of  the  Court  of  Arbitration  of 
February  24,  191 1,  in  the  Anglo-French  difference  concerning  one 
Savarkar,  a  Hindoo,  who  succeeded  at  Marseilles  in  escaping  from 
an  English  vessel  upon  which  he  was  being  transported,  and  who 
was  immediately  apprehended  on  land  by  some  of  the  ship's  crew 
with  the  help  of  a  French  policeman.  We  may  permit  ourselves 
the  question  if  political  motives  do  not  appear  in  the  decision  of 
September  7,  1910,  of  the  same  court,  in  the  controversy  between 
Great  Britain  and  the  United  States  regarding  the  fisheries  in  the 
Atlantic  Ocean. 

These  three  examples  (the  distinguished  author  continues)  taken 
at  random  from  arbitral  awards,  suffice  to  show  that  even  the 
Permanent  Court  of  Arbitration  does  not  offer  sufficient  guaran- 
ties against  the  presence  of  elements  absolutely  inconsistent  with 
law.  .  .  .  After  this,  can  we  be  astonished  that  governments, 
conscious  of  their  responsibility,  hesitate  to  intrust  to  arbitra- 
tion, notwithstanding  their  sympathy  and  respect  for  it,  the  in- 
terests, often  serious,  with  which  they  are  charged?  ^ 

'  On  peut  citer  d'abord  la  sentence  arbitrale  de  M.  F.  de  Martens  du  13  fevrier 
1897  dans  I'aflfaire  du  Costa  Rica  Packet  entre  les  Pays-Bas  et  la  Grande- 
Bretagne.  On  doit  indiquer  encore  I'arret  du  24  Fevrier  191 1  de  la  Cour 
d' Arbitrage  dans  le  differend  Anglo-franqaise  a  propos  de  Savarkar,  I'Hindou 


28  AN  INTERNATIONAL  COURT  OF  JUSTICE 

But  the  Dutch  jurist  is  not  content  to  criticise  and  to  explain :  he 
suggests  the  remedy,  which  is  nothing  more  nor  less  than  the  estab- 
lishment of  the  Court  of  Arbitral  Justice.     Thus,  he  says : 

The  Conference  of  1907  drafted,  however,  a  project  dealing 
with  the  composition  and  jurisdiction  of  the  Court  of  Arbitral 
Justice,  which  it  recommended  the  signatory  powers  to  put  into 
effect  as  soon  as  an  agreement  should  be  reached  upon  the  choice 
of  judges  and  the  constitution  of  the  court.  If  then  the  creation 
of  the  court  did  not  actually  take  place,  at  least  there  is  the  possi- 
bility of  creating  it  in  the  future.  The  real  progress  which  has 
been  made  in  the  recent  past  justifies  this  hope.  If  the  institu- 
tion is  established,  we  shall  be  able  by  means  of  it  to  correct  ex- 
cess of  power  and  to  prevent  arbitration  from  being  influenced  by 
"J)  political  views;  in  a  word,  we  shall  eliminate  two  capital  defects 
which  militate  against  arbitration.^ 

Arbitration  ^g  a  rcsult  of  the  experience  had  in  the  practice  of  arbitration  since 

difference.  the  negotiation  of  the  Jay  treaty  in  1794,  many  partisans  of  peaceful 

settlement  have  come  to  the  conclusion  that  arbitration  is  too  often 
synonymous  with  compromise ;  that  it  is  "  an  adjustment  "  of  difficulties 
rather  than  "a  judicial  decision"  of  controversies;  and  fear  has  been 
expressed  in  many  quarters  that  if  compromise  continues  to  charac- 
terize arbitral  awards,  nations  may,  instead  of  resorting  to  it  more 
frequently  in  the  future  than  in  the  past,  prefer,  and  properly  so,  to 
compromise  their  differences  directly  through  diplomatic  agents  whom 
they  can  control,  rather  than  to  submit  them  to  arbiters  who  are  not 

qui  parvint,  a  ATarseille,  a  s'enfuir  du  navire  anglais  qui  Ic  transportait  et  qui  fut 
aussitot  apprehende  a  terre  par  des  hommes  de  I'equipage  avec  le  concours  d'un 
agent  de  la  police  frangaise.  11  est  permis  de  se  demander  si  des  mobiles 
politiques  ne  transpercent  pas  aussi  dans  I'arret  du  7  septembre  1910  de  la 
meme  Cour  dans  la  contestation  entre  la  Grande-Bretagne  et  les  Etats-Unis  a 
propos  des  pecheries  de  I'ocean  Atlantique. 

Ces  trois  exemples,  pris  au  hasard  parmi  les  sentences  arbitrales,  suffisent 
a  montrcr  que  la  Cour  permanente  d'arbitrage  elle-meme  n'offre  pas  des  garanties 
sufifisantcs  contre  la  penetration  d'elements  absolument  etrangers  au  droit.  .  .  . 
Peut-on  s'etonner  aprcs  cela  que  des  gouvernements  conscients  de  Jeur  responsa- 
bilite  hesitent  a  conficr  a  I'arbitrage,  malgre  qu'ils  aient  pour  lui  sympathie  et 
respect,  des  interets,  reellemcnt  graves  parfois,  dont  ils  ont  la  charge?  Revue 
generale  de  droit  international  public,  vol.  xix,  1912,  pp.  289-290. 

1  La  Conference  de  1907  redigea  toutefois  un  projet  sur  la  composition  et  la 
competence  de  la  Cour  de  Justice  arbitrale,  qu'elle  recommanda  aux  puissances 
signataires  pour  cntrer  en  vigueur  des  qu'un  accord  serait  intervcnu  sur  le  choix 
des  juges  et  la  constitution  de  la  Cour.  Si  done  la  creation  de  la  Cour  n'a  pas 
eu  lieu  effectivcmcnt,  du  moins  la  possibilite  de  la  realiser  a  I'avenir  demeure. 
Les  progres  reels  effcctues  dans  un  passe  recent  permettent  a  ce  sujet  d'esperer. 
Si  I'institution  parvicnt  a  s'etablir,  on  previendra  grace  a  elle  les  exces  de 
pouvoir  et  on  empechcra  que  I'arbitrage  ne  soit  influence  par  les  vues  politiques ; 
en  un  mot,  en  ecartera  deux  defauts  capitaux  qui  pesent  sur  i'arbitrage.  Ibid., 
pp.  290-291. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  29 

wholly  subject  to  their  supervision.  To  drive  compromise  from  the 
bench  and  to  exclude  it  from  the  court  room  is  not  to  deny  it  a  right 
to  exist  and  to  flourish  elsewhere,  for  it  is  often  useful,  sometimes 
necessary.  It  is,  in  fact,  the  life  and  soul  of  diplomatic  negotiation 
and  of  diplomatic  adjustment,  for  nations  have  adopted  in  their  mutual 
intercourse  the  principle  of  "  give  and  take,"  and  are  inclined  to  yield 
a  point  in  the  interest  of  good  understanding;  but  they  naturally  wish 
to  determine  for  themselves  what  can  or  can  not  be  yielded,  and  to 
conduct  by  their  accredited  agents  negotiations  leading  to  an  agree- 
ment. Should  they  fail  to  adjust  their  differences  by  direct  negotia- 
tions, it  is  hard  to  believe  that  they  will  long  continue  to  be  willing  to 
intrust  persons,  not  subject  to  their  direction,  with  the  delicate  and 
difficult  task  of  deciding,  without  consulting  them,  what  concession 
should  be  made.  In  a  word,  if  arbitration  is  to  be  considered  as  a 
diplomatic  process,  nations  may  properly  prefer  their  own  diplomacy ; 
if  arbitration  is  to  be  considered  another  and  a  dififerent  remedy, 
especially  if  it  be  in  fact  as  well  as  in  theory  a  judicial  remedy,  nations 
may  be  willing  to  resort  to  it  when  diplomacy  has  failed  to  adjust 
disputes  of  a  legal  or  justiciable  nature. 

As  authority  for  the  views  imperfectly  expressed  in  the  above  para-  Arbitration 

■'  i.  J  V  1  versus    judicial 

graph,  the  undersigned  takes  the  liberty  of  quoting  two  passages  from   !^"'«^^"V 
Senator  Root,  who  led  the  American  bar  as  long  as  he  cared  to  practice   views. 
before  it,  and  whose  Secretaryship  of  State  is  the  golden  period  of 
American  diplomacy.     In  an  address  delivered  in   1907,  before  the 
National  Arbitration  and  Peace  Congress,  Mr.  Root  said : 

Arbitrators  too  often  act  diplomatically  rather  than  judicially; 
they  consider  themselves  as  belonging  to  diplomacy  rather  than  to 
jurisprudence ;  they  measure  their  responsibility  and  their  duty  by 
the  traditions,  the  sentiments  and  the  sense  of  honorable  obligation 
which  have  grown  up  in  centuries  of  diplomatic  intercourse, 
rather  than  by  the  traditions,  the  sentiments  and  the  sense  of 
honorable  obligation  which  characterize  the  judicial  departments 
of  civilized  nations.  Instead  of  the  sense  of  responsibility  for  im- 
partial judgment  which  weighs  upon  the  judicial  officers  of  every 
civilized  country,  and  which  is  enforced  by  the  honor  and  self-re- 
spect of  every  upright  judge,  an  international  arbitration  is  often 
regarded  as  an  occasion  for  diplomatic  adjustment.  Granting  that 
the  diplomats  who  are  engaged  in  an  arbitration  have  the  purest 
motives ;  that  they  act  in  accordance  with  the  policy  they  deem 
to  be  best  for  the  nations  concerned  in  the  controversy ;  assum- 
ing that  they  thrust  aside  entirely  in  their  consideration  any  in- 
terests which  their  own  countries  may  have  in  the  controversy  or 
in  securing  the  favor  or  averting  the  displeasure  of  the  parties  be- 


30  AN  INTERNATIONAL  COURT  OF  JUSTICE 

fore  them;  nevertheless  it  remains  that  in  such  an  arbitration  the 
litigant  nations  find  that  questions  of  policy  and  not  simple  ques- 
tions of  fact  and  law  are  submitted  .to  alien  determination,  and 
an  appreciable  part  of  that  sovereignty  which  it  is  the  function  of 
every  nation  to  exercise  for  itself  in  determining  its  own  policy, 
is  transferred  to  the  arbitrators.^ 

In  this  passage  Mr.  Root  spoke  as  a  citizen  interested  in  arbitration 
as  a  means  of  peaceable  settlement.  In  the  following  quotation,  taken 
from  his  instructions  to  the  American  delegates  to  the  Second  Peace 
Conference,  he  spoke  as  a  statesman  and  in  his  official  character  of 
Secretary  of  State : 

The  method  in  which  arbitration  can  be  made  more  effective,  so 
that  nations  may  be  more  ready  to  have  recourse  to  it  voluntarily 
and  to  enter  into  treaties  by  which  they  bind  themselves  to  submit 
to  it,  is  indicated  by  observation  of  the  weakness  of  the  system  now 
apparent.  There  can  be  no  doubt  that  the  principal  objection  to 
arbitration  rests  not  upon  the  unwillingness  of  nations  to  submit 
their  controversies  to  impartial  arbitration,  but  upon  an  appre- 
hension that  the  arbitrations  to  which  they  submit  may  not  be  im- 
partial. It  has  been  a  very  general  practice  for  arbitrators  to  act, 
not  as  judges  deciding  questions  of  fact  and  law  upon  the  record 
before  them  under  a  sense  of  judicial  responsibility,  but  as  nego- 
tiators effecting  settlements  of  the  questions  brought  before  them 
in  accordance  with  the  traditions  and  usages  and  subject  to  all 
the  considerations  and  influences  which  affect  diplomatic  agents. 
The  two  methods  are  radically  different,  proceed  upon  different 
standards  of  honorable  obligation,  and  frequently  lead  to  widely 
differing  results.  It  very  frequently  happens  that  a  nation  which 
would  be  very  willing  to  submit  its  differences  to  an  impartial 
judicial  determination  is  unwilling  to  subject  them  to  this  kind  of 
diplomatic  process.  If  there  could  be  a  tribunal  which  would  pass 
upon  questions  between  nations  with  the  same  impartial  and  im- 
personal judgment  that  the  Supreme  Court  of  the  United  States 
gives  to  questions  arising  between  citizens  of  the  different  states, 
or  between  foreign  citizens  and  the  citizens  of  the  United  States, 
there  can  be  no  doubt  that  nations  would  be  much  more  ready  to 
submit  their  controversies  to  its  decision  than  they  are  now  to 
take  the  chances  of  arbitration.^ 

^oui'/Jio't"br  Again,  some  questions  are  proper  subjects  for  compromise,  whereas 

compromised.        others  are  not.     Special  interests  may  be  sacrificed,  political  questions 

may  be  discussed  and  debated,  and  an  agreement  reached.     Legal 

'  Proceedings  of  the  National  Arbitration  and  Peace  Congress,  1907,  p.  44. 
'  Instructions   to  the   American   delegates   to   the    Hague    Conference,    1907, 
Foreign  Relations  of  the  United  States,  1907,  pt.  ii,  p.  1135. 


pernor 
Baldwin's 


AN  INTERNATIONAL  COURT  OF  JUSTICE  31 

questions,  however,  are  not,  or  at  least  should  not  be,  the  subject  of 
compromise.  They  should  be  decided  according  to  principles  of  law 
which  either  exist  or  are  created  for  the  occasion;  and  courts  of  law 
have  invariably  supplanted  arbitration  as  a  better  means  of  settling 
disputes  of  a  justiciable  nature  between  individuals. 

An  eminent  American  jurist,  the  Honorable  Simeon  E.  Baldwin,   J"£!^i^' „ 

^  -*  '     process  prc" 

Governor  of  the  State  of  Connecticut  and  formerly  Chief  Justice  of  arbitr^atfon 
its  Supreme  Court,  gives  the  reasons  for  preferring  judicial  procedure  §°f^^ 
to  arbitration  in  the  following  brief  passage : 

It  is  a  mode  of  procedure  that  has  been  always  well  known,  but 
a  trial  before  a  court  is  generally  preferred,  even  when  both 
parties  are  desirous  of  obtaining  a  speedy  and  final  determination 
of  their  dispute.  They  prefer  it,  because  it  provides  judges  chosen 
without  reference  to  their  attitude  towards  the  controversy  in 
question,  and  who  are  bound  to  follow  fixed  rules,  adopted  long 
before  the  controversy  arose,  for  no  other  reason  than  that  they 
were  believed  to  be  the  rules  of  justice.^ 

It  is  reasonable  to  expect  that  nations  will  do  in  the  long  run  be- 
tween and  among  themselves  what  each  nation  has  done  within  national 
lines,  and  that  an  international  court  of  justice  will  be  established  for 
the  impartial  decision  of  legal  questions,  because  the  peoples  of  each 
and  every  nation  are  familiar  with  this  process  of  settlement.  We  are 
justified  in  this  belief  because  it  is  every-day  experience  that  the  small 
things  with  which  we  are  familiar  may  be  done  on  a  larger  scale ;  and 
it  is  only  necessary  to  extend  judicial  process  beyond  national  lines 
into  the  international  field  to  provide  an  easy  and  satisfactory  method 
of  settling  disputes  of  a  legal  nature,  which  could  and  would  easily 
have  been  settled  within  national  lines  by  judicial  process.  It  is  natural, 
however,  that  nations  should  move  slowly — large  bodies  always  do — 
and  nations,  even  more  than  individuals,  are  prone  to  learn  from 
experience. 

An  international  court,  therefore,  will  no  doubt  be  regarded  as  an 
experiment,  just  as  arbitration  was  until  recently  considered  to  be  an  proposTdfor 
experiment;  and  it  is  the  part  of  wisdom  to  try  the  experiment  under  nine  nations, 
the  most  favorable  conditions.  A  court  for  a  limited  number  of  nations 
mutually  respecting  each  other  and  having  confidence  in  each  other's 
integrity,  and  devotion  to  justice  and  its  administration,  would  seem 
to  be  easier  to  create  than  a  court  for  the  nations  at  large;  and  the 
proposal  contained  in  this  memorandum  is  for  the  formation  of  a 

*  Simeon  E.  Baldwin,  The  New  Era  of  International  Courts,  Bulletin  of  the 
American  Society  for  Judicial  Settlement  of  International  Disputes,  1910,  p.  8. 


International 
court  as 


32 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


Mr.  L^on 

BourReois* 
reasons  for 
judicial  court. 


truly  permanent  Court  of  Justice  to  be  established  at  The  Hague  and 
installed  in  the  Peace  Palace,  by  Germany,  the  United  States,  Austria- 
Hungary,  France,  Great  Britain,  Italy,  Japan,  the  Netherlands,  and 
Russia.  The  existence  of  such  a  court  for  the  decision  of  legal  or 
justiciable  disputes  which  may  arise  among  the  nations  creating  it  or 
parties  to  its  operation  would  not  mean  the  disestablishment  of  the 
present  so-called  Permanent  Court  of  Arbitration.  It  would  be  but 
another  and  an  additional  guaranty  for  peaceful  settlement;  the  so- 
called  Permanent  Court  would  still  exist  and  could  be  resorted  to  by 
any  nation  which  preferred  it  to  the  newer  institution ;  and  time,  which 
settles  all  things,  would  determine  which  tribunal  was  best  fitted  to 
decide  the  disputes  which  needs  must  arise  between  nations.  Indeed, 
it  would  seem  that  the  two  institutions  are  necessary,  because  each 
occupies,  or  may  well  occupy,  a  separate  and  distinct  place  in  the  inter- 
national field,  a  fact  pointed  out  by  Mr.  Leon  Bourgeois  in  his  careful 
and  discriminating  address  at  the  Second  Peace  Conference  advocating 
the  proposed  Court  of  Arbitral  Justice: 

As  Mr.  Asser  has  said :  "  There  must  be  judges  at  The  Hague." 
If  there  are  at  present  no  judges  at  The  Hague,  it  is  because  the 
Conference  of  1899,  taking  into  consideration  the  whole  field  open 
to  arbitration,  intended  to  leave  to  the  parties  the  duty  of  choosing 
their  judges,  which  choice  is  essential  in  all  cases  of  peculiar 
gravity.  We  should  not  like  to  see  the  court  created  in  1899  lose 
its  essentially  arbitral  character,  and  we  intend  to  preserve  this 
freedom  in  the  choice  of  judges  in  all  cases  where  no  other  rule 
is  provided. 

In  controversies  of  a  political  nature,  especially,  we  think  that 
this  will  always  be  the  real  rule  of  arbitration,  and  that  no  nation, 
large  or  small,  will  consent  to  go  before  a  court  of  arbitration  un- 
less it  takes  an  active  part  in  the  appointment  of  the  members  com- 
posing it. 

But  is  the  case  the  same  in  questions  of  a  purely  legal  nature? 
Can  the  same  uneasiness  and  distrust  appear  here?  And  does  not 
every  one  realize  that  a  real  court  composed  of  real  jurists  may 
be  considered  as  the  most  competent  organ  for  deciding  contro- 
versies of  this  character  and  for  rendering  decisions  on  pure  ques- 
tions of  law  ? 

In  our  opinion,  therefore,  either  the  old  system  of  1899  o^  the 
new  system  of  a  truly  permanent  court  may  be  preferred,  accord- 
ing to  the  nature  of  the  case.  At  all  events  there  is  no  intention 
whatever  of  making  the  new  system  compulsory.  The  choice  be- 
tween the  tribunal  of  1899  ^^^  the  court  of  1907  will  be  optional; 
and,  as  Sir  Edward  Fry  has  so  well  said,  experience  will  show  the 
advantages  or  disadvantages  of  the  two  systems.^ 

*  Comme  I'a  dit  M.  Asscr:    II  faut  qu'il  y  ait  dcs  juges  a  La  Haye.     Mais 
s'il  n'y  en  a  pas  actucUcmcnt,  c'est  parcc  que  la  Conference  de   1899,  envisa- 


views. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  33 

Accepting  Mr.  Bourgeois'  distinction  between  the  existing  and  the  Comment  on 
proposed  institution  as  correct,  it  follows  that  disputes  of  a  legal  ^P^^^°^^' 
nature,  which  have  assumed  political  importance  through  delay  or 
mismanagement,  may  be  referred  to  a  temporary  tribunal  composed  of 
judges  of  the  parties'  choice,  in  full  confidence  that  the  judges  so 
chosen  v/ill  adjust  the  difference  "  on  the  basis  of  respect  for  law," 
which  is  declared,  in  Article  15  of  the  Convention  of  1899  ^^^  ^he 
pacific  settlement  of  international  disputes  (Convention  of  1907, 
Article  37),  to  be  the  object  of  international  arbitration;  whereas 
differences  of  a  justiciable  nature  which  have  not  been  distorted  by 
delay  or  mismanagement,  and  have  not  acquired  a  political  importance 
which  they  did  not  originally  possess,  may  be  referred  to  and  decided — 
not  settled  or  adjusted — by  a  veritable  court  of  justice,  already  in 
existence  and  composed  of  judges  versed  in  law  and  trained  in  its 
application.  It  is  not  maintained  that  nations  would  submit  to  an 
international  court  all  legal  controversies,  because  the  existence  of  a 
nation  may  be  involved,  as  was  the  case  in  the  dispute  between  Great 
Britain  and  the  Transvaal ;  nor  is  it  claimed  that  all  political  questions 
turn  on  a  point  of  law.  It  is  believed,  however,  that  many  if  not  most 
of  the  disputes  between  nations,  other  than  questions  of  policy  which 
are  not  ordinarily  susceptible  of  judicial  decision,  result  from  an  honest 
difference  of  opinion  as  to  the  existence  or  non-existence  of  a  fact  or 
series  of  facts,  and  as  to  the  existence  and  applicability  of  a  principle 
of  law,  and  that  if  an  international  court  were  in  existence  possessing, 

geant  dans  son  ensemble  le  champ  ouvert  aux  arbitrages,  a  entendu  laisser 
aux  parties  le  soin  de  choisir  leurs  juges.  choix  essential  dans  toutes  les  causes 
d'une  gravite  particuliere.  Nous  ne  voudrions  pas  voir  disparaitre  le  caractere 
veritablement  arbitral  de  la  juridiction  de  1899,  et  nous  entendons  maintenir 
ce  libre  choix  des  juges  comme  la  regie  superieure  et  commune,  pour  tous  les 
cas  ou  une  autre  regie  n'aura  pas  ete  stipulee. 

Dans  les  conflits  d'ordre  politique,  notamment,  nous  pensons  que  cette  regie 
sera  toujours  la  veritable  regie  de  I'arbitrage  et  qu'aucun  Etat,  petit  ou  grand, 
ne  consentira  a  aller  devant  un  tribunal  arbitral  s'il  n'est  pas  intervenu  d'une 
fagon  decisive  dans  la  designation  des  membres  qui  le  composent. 

Mais  en  est-il  de  meme  dans  les  questions  d'ordre  purement  juridique?  Ici 
les  memes  inquietudes,  les  memes  defiances  peuvent-elles  se  produire?  Et 
chacun  ne  congoit-il  pas  qu'un  tribunal  veritable,  forme  de  veritables  juris- 
consultes,  pent  etre  considere  comme  I'organe  le  plus  competent  pour  trancher 
les  conflits  de  ce  genre  et  rendre  des  decisions  sur  de  pures  questions  de  droit. 

A  nos  yeux,  c'est  done,  selon  la  nature  des  afifaires,  I'ancien  systeme  de  1899, 
ou  le  -nouveau  systeme  d'un  tribunal  vraiment  permanent,  qui  pourra  etre 
pre  fere.  En  tout  cas  il  n'est  nullement  question  de  rendre  obligatoire  ce  nouveau 
systeme ;  nul  ne  sera  oblige  d'user  de  I'un  plutot  que  de  I'autre.  Le  choix 
entre  la  Cour  de  1899  et  le  Tribunal  de  1907  sera  facultatif.  Et,  comme  I'a 
si  bien  dit  Sir  Edward  Fry,  c'est  I'experience  qui  fera  ressortir  les  avantages 
ou  les  inconvenients  des  deux  systemes ;  c'est  I'usage  qui  consacrera  la  meilleure 
des  deux  juridictions.  Deuxieme  Conference  de  la  Paix,  1907,  Actes  et  docu- 
ments, vol.  ii,  pp.  347-348. 


34 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


Court  should 
exist  at 
outbreak  of 
controversy. 
List  of 
arbiters 
not  a  court. 


Members  of 
list  or  panel 
who  have 
acted  more 
than  once 
as  arbiters. 


because  it  deserved  to  possess,  the  confidence  of  nations,  disputes  would 
be  submitted  when  and  as  they  arose,  and  be  decided  before  prejudice 
and  passion  had  embittered  relations  and  made  a  peaceful  settlement 
difficult,  if  not  impossible.  Law  regulates  only  a  small  portion  of 
individual  activity.  It  has  grown  to  meet  human  needs,  and  there  is  no 
reason  to  believe  that  international  law  will  not  grow  to  meet  the  needs 
of  nations,  and  to  supply  the  rule  of  conduct  to  be  observed  in  a  par- 
ticular case,  if  only  the  nations  wish  to  have  their  conduct  governed 
by  principles  of  justice;  and  public  opinion  has  become  so  enlightened 
that  no  nation  would  venture  to  assert  that  it  is  unwilling  to  act  in 
accordance  with  principles  of  justice,  if  such  principles  exist  and  are 
found  applicable  to  the  dispute. 

It  would  seem,  therefore,  that  nations  need  to  have  a  tribunal  in 
being  before  or  at  the  time  of  a  controversy;  for  they,  like  the  indi- 
viduals of  which  they  are  composed,  are  not  in  a  frame  of  mind  to 
constitute  an  impartial  tribunal  under  stress  of  passion  and  the  excite- 
ment and  impulse  of  the  moment.  This  need  is  not  met  by  a  list  or 
panel  of  judges  from  which  a  temporary  tribunal  can  be  formed.  The 
list  or  panel  is  no  doubt  of  service,  because  it  calls  the  attention  of 
prospective  litigants  to  persons  regarded  by  the  nations  as  qualified 
to  act  as  members  of  a  temporary  tribunal.  But  if  we  consider  the 
composition  of  the  dozen  temporary  tribunals  which  have  been  formed 
from  the  official  list  or  panel  of  judges  devised  by  the  First  Peace  Con- 
ference, we  see  at  once  that  the  nations  have  not  selected  the  judges 
indiscriminately  from  the  list  or  panel,  but  that  they  have  chosen 
diplomats  and  jurists  from  a  very  few  countries;  and  it  seems  likely 
that  these  diplomats  and  jurists  would  have  been  picked  out  if  the  list 
or  panel  had  not  existed. 

The  following  passage  from  a  well-informed  Dutch  writer  gives 
some  interesting  details  upon  the  point  in  question: 

In  the  space  of  about  ten  years,  the  Permanent  Court  of  Arbi- 
tration settled  twelve  disputes.  France  was  a  party  to  six  of 
these ;  America  and  England  to  five ;  Italy  and  Germany  to  three ; 
Russia,  Mexico,  Venezuela,  Sweden  and  Norway  each  to  two ; 
Spain,  Belgium,  Holland,  Turkey  and  Peru  each  to  one.  In  five 
of  the  cases,  Dutch  jurists,  Asser,  de  Savornin  Lohman  and  Loeflf, 
acted  as  judges,  and  in  the  first,  two  Dutchmen  sat  at  the  same 
time ;  Swedish  and  Norwegian  arbitrators.  Professor  Hammarsk- 
jold  and  Minister  Gram,  sat  in  five  of  these  disputes.  France  also 
was  represented  five  times  in  the  arbitration  court,  Profes.sor 
Renault  being  chosen  each  time.  Professor  Lammasch  of  Austria, 
who  was  chosen  judge  four  times,  has  also  rendered  very  good 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


35 


mixed 
commission. 


services ;  England  was  represented  twice  by  Sir  Edward  Fry,  once 
by  Sir  Charles  Fitzpatrick,  and  once  by  Lord  Desart;  Russia 
twice  by  Professor  de  Martens,  twice  by  Baron  Taube,  and  once 
by  Mandelstam,  while  Fusinato  represented  Italy  in  three  of  the 
arbitration  courts.  The  prominent  place  that  Holland  occupies 
with  Sweden  in  this  list,  is  the  more  remarkable,  if  it  is  borne  in 
mind  that  it  has  never  submitted  a  case  to  the  Permanent  Court, 
and  thus  has  never  appointed  a  judge,'^ 

It  is  no  doubt  highly  gratifying  to  the  Dutch  author  to  note  that  his 
countrymen  have  been  so  often  called  upon  to  act  as  arbiters ;  but  this 
fact  seems  quite  natural  to  the  foreigner  who  has  long  been  accustomed 
to  look  upon  Holland  as  the  birthplace  of  the  law  of  nations,  and  it 
is  proper  to  observe  in  this  connection  that  Grotius,  born  in  but  expelled 
from  Holland,  found  a  second  home  and  congenial  employment  in 
Sweden,  which,  like  Holland,  has  thus  a  special  claim  to  the  gratitude 
of  international  lawyers  and  indeed  of  the  nations. 

But  even  supposing  that  the  panel  is  of  very  great  service,  it  never-  f^bunli^efiiy 
theless  is  a  fact  that  the  list  is  not  a  court,  and  that  the  temporary 
tribunal  has  to  be  formed  by  agreement  of  the  parties.  Practical  experi- 
ence in  constituting  the  tribunal,  shows  that  this  is  no  easy  matter, 
and  that  every  endeavor  is  made  to  secure  judges  supposed  to  be 
favorable  to  the  contentions  of  the  country  selecting  them,  or  at  least 
open  to  conviction.  A  tribunal  thus  constituted  differs  only  in  name 
from  the  mixed  commissions  antedating  the  Hague  Peace  Conference 
of  1899;  and  it  is  believed  that  the  awards  of  the  various  temporary 
tribunals  of  The  Hague  are  not  superior  to  the  awards  of  mixed  com- 
missions— certainly  not  superior  to  the  decisions,  for  they  were  deci- 
sions, of  the  mixed  commission  organized  under  the  seventh  article 

*  Es  sind  also  in  einem  Zeitraum  von  ungefahr  10  Jahren  12  Prozesse  von 
dem  permanenten  Schiedshof  entschieden  worden.  Bei  diesen  12  Streitigkeiten 
war  Frankreich  sechsmal  Partei,  Amerika  und  England  fiinfmal,  Italian  und 
Deutschland  dreimal,  Russland,  Mexiko,  Venezuela,  Schweden  und  Norwegen 
zweimal,  Spanien,  Belgien,  Holland,  die  Tiirkei  und  Peru  je  einmal.  Fiinfmal 
sassen  niederlandische  Juristen  als  Richter,  namlich  Asser,  de  Savornin  Lohman 
und  Loeff,  das  erstemal  sogar  zwei  Hollander  zugleich;  fiinfmal  auch  schwed- 
ische  und  norwegische  Richter,  namlich  Professor  Hammarskjold  und  Minister 
Gram.  Auch  Frankreich  hatte  fiinfmal  Richter  im  Tribunal,  und  zwar  stets 
Professor  Renault.  Sehr  verdient  gemacht  hat  sich  besonders  auch  der  Oster- 
reicher  Professor  Lammasch,  der  viermal  Richter  war ;  England  sandte  zweimal 
Sir  Edward  Fry,  einmal  Sir  Charles  Fitzpatrick  und  einmal  Lord  Desart, 
Russland  zweimal  Professor  von  Martens,  zweimal  Baron  Taube  und  einmal 
Mandelstam,  Italien  dreimal  Fusinato  in  ein  Schiedsgericht.  Die  hervorragende 
Stelle,  die  Holland  in  dieser  Reihe  neben  Schweden  einnimmt,  ist  um  so  merk- 
wiirdiger,  wenn  man  bedenkt,  dass  es  nie  selber  eine  Sache  vor  den  permanenten 
Hof  gebracht,  also  nie  einen  Schiedsrichter  eingesetzt  hat.  Henri  van  der 
Mandere,  Uebersicht  uber  die  Prozesse  des  Haager  standigen  Schiedsgerichts- 
hofes,  Zeitschrift  fiir  Volkerrecht,  vol.  7,  p.  255. 


36 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


Award  only 
binds  parties 
in  litigation 
before    tribunal. 


Award  does 
not  bind 
other  or  later 
tribunal. 


of  the  Jay  treaty.  But,  supposing  that  the  tribunal  has  been  chosen 
from  the  list  of  judges  of  the  so-called  Permanent  Court  of  Arbitration, 
and  granting  that  the  award  is  in  form  and  in  fact  a  decision  of  a 
court  of  justice  upon  the  issue  involved,  it  nevertheless  only  binds 
the  parties  to  the  controversy.  Other  nations  are  unaffected  by  the 
judgment.  It  is  not  a  precedent  binding  other  and  later  tribunals,  and 
it  can  only  be  considered  a  precedent  in  so  far  as  other  nations  may 
find  it  to  their  advantage  to  follow  it. 

It  needs  neither  argument  nor  the  citation  of  authority  for  the  state- 
ment that  the  award  only  binds  the  parties  to  it,  for,  as  the  dispute 
arises  between  two  countries,  and  as  they  agree  to  refer  it  to  a  tribunal 
which  they  alone  constitute,  it  necessarily  follows  that  the  decision 
affects  them  alone,  and  does  not  define  the  rights  and  duties  of  other 
nations  which  take  no  part  in  the  proceedings.  It  is  alike  a  funda- 
mental principle  of  national  and  of  international  law  that  judgments 
of  courts  only  bind  the  parties  before  them.  Lord  Mansfield  once 
stated  that  some  things  are  so  clear  that  they  can  only  be  obscured  by 
argument,  and  this  would  appear  to  be  one  of  them.  But  if  argument 
be  excluded,  authority  may  be  invoked,  and  the  authority  is  none  other 
than  the  Convention  of  1899  for  the  pacific  settlement  of  international 
disputes,  creating  the  so-called  Permanent  Court.  Article  56  of  this 
important  document  says : 

The  award  is  only  binding  on  the  parties  who  concluded  the 
cojnpromis. 

When  there  is  a  question  of  interpreting  a  convention  to  which 
powers  other  than  those  concerned  in  the  dispute  are  parties,  the 
latter  notify  to  the  former  the  compromis  they  have  concluded. 
Each  of  these  powers  has  the  right  to  intervene  in  the  case.  If 
one  or  more  of  them  avail  themselves  of  this  right,  the  interpre- 
tation contained  in  the  award  is  equally  binding  on  them.^ 

It  has  been  stated  that  the  award  of  a  special  or  temporary  tribunal 
does  not  bind  another  or  a  later  tribunal,  because  each  is  a  special, 
separate,  and  distinct  tribunal.  The  tribunal  is  created  for  the  settle- 
ment of  a  dispute.  It  passes  out  of  being  when  this  dispute  is  settled. 
It  may  be  composed  of  the  same  or  of  different  judges;  but  it  is  a 

1  La  sentence  arbitrale  n'est  obligatoire  que  pour  les  Parties  qui  ont  conclu 
le  compromis. 

Lorsqu'il  s'agit  de  I'interprctation  d'une  convention  a  laquelle  ont  participe 
d'autres  Puissances  que  les  Parties  en  litige,  celles-ci  notifient  aux  premieres 
le  compromis  qu'elles  ont  conclu.  Chacune  de  ces  Puissances  a  le  droit  d'in- 
tervenir  au  proces.  Si  une  ou  plusieurs  d'cntre  elles  ont  profite  dc  cette  faculte 
I'interpretation  contenue  dans  la  sentence  est  egalement  obligatoire  a  leur  egard. 
Cf.  also  Article  84  of  1907. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  37 

different  tribunal,  and  the  parties  before  it  are  different  parties.  The 
first  tribunal  was  invested  with  the  power  to  decide  the  issue  and  the 
parties  agreed  in  advance  to  accept  the  award.  It  is  therefore  binding 
upon  them,  but  not  upon  other  nations  which  did  not  agree  to  be  bound 
by  it,  and  whose  rights  and  duties  are  not  affected  by  it.  In  like 
manner  the  subsequent  tribunal  is  the  agent  of  the  parties  constituting 
it.  Its  award  binds  them,  because  they  have  agreed  to  be  bound.  The 
later  tribunal  may  consider  and  follow  the  finding  of  the  former,  if  it 
appears  to  be  in  point,  but  the  tribunal  is  not  obliged  to  do  so.  There 
is  no  necessary  connection  between  them.  They  are  but  separate  links. 
They  are  not  bound  together,  and  can  not  be,  except  by  action  of  the 
nations. 

A  distinguished  American  jurist,  Mr.  Eugene  Wambaugh,  professor  ^^^^^1°^, 
of  law  in  Harvard  University,  has  examined  the  effect  of  awards  of   ™e*c1rr\°ibunais 
commissions  and  the  extent  to  which  they  may  be  considered  as  prece-   "ot  precedents. 
dents,   and  his   conclusion,   in   strict  accordance   with   fact,   deserves 
quotation : 

As  a  commission  is  temporary,  passes  upon  only  one  question 
or  series  of  questions,  and  has  no  responsibility  as  to  future  prob- 
lems— all  of  which  points,  by  the  way,  characterize  the  commis- 
sions which  may  from  time  to  time  be  selected  from  the  so-called 
Permanent  Court  of  Arbitration  at  The  Hague — what  has  been 
said  of  the  development  of  a  science  through  courts  disappears 
when  the  discussion  passes  to  commissions.  Nor  are  the  decisions 
of  commissions  habitually  supported  by  statements  of  legal  prop- 
ositions. The  opinions  of  such  commissions  are  not,  as  a  matter 
of  fact,  treated  as  a  source  of  law.  They  are  seldom  quoted,  or 
even  cited,  in  international  law  treatises.  Nor  are  they  dealt  with 
as  valuable  proofs  of  law  by  later  international  commissions.  In 
other  words,  each  case  is  decided  as  if  it  were  an  isolated  problem, 
sporadic,  never  occurring  before  and  never  to  occur  again.  Fi- 
nally, there  is  not,  and  can  not  be,  a  bar  of  counselors  learned  in 
the  science  of  the  law  of  commissions ;  for  that  science  is  non- 
existent. The  state  of  affairs  was  approximately  described  by 
Milton,  when,  dealing  with  another  matter,  he  wrote : 

Chaos  umpire  sits. 
And  by  decision  more  embroils  the  fray 
By   which    he   reigns :    next   him   high    arbiter 
Chance  governs  all.' 

In  the  next  place,  the  procedure  before  a  temporary  tribunal  is  long  Arbiters  often 
drawn  out,  a  defect  due  to  the  circumstances  and  the  conditions  under   wendiy^om- 

posers  of  dif- 

'  Proceedings   of  the  American  Society  for  Judicial  Settlement  of  Inter-    ratherlhan 
national  Disputes,  1910,  pp.  144-145.  judges. 


38 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


Professor 
Lammasch's 
views  on 
arbitration 
and  on  duties 
of  arbiters. 


which  the  tribunal  is  constituted  and  acts,  rather  than  to  its  members. 
The  arbiters  of  the  moment  have  not  had  the  experience  of  working 
together.  They  are  strangers  to  each  other  and  unfamiHar  with  the 
nature  of  the  proceedings.  They  have  been  brought  together  to  settle 
a  dispute,  and  they  naturally  look  upon  themselves  as  invested  with  a 
mission  to  adjust  the  controversy  to  the  satisfaction  of  the  governments 
which  appointed  them,  instead  of  deciding  it  according  to  abstract 
principles  of  law,  and  instead  of  contributing  by  their  decisions  to  the 
development  of  international  law.  Leading  partisans  of  arbitration 
in  the  First  and  Second  Hague  Peace  Conferences  opposed  the  right 
of  revision  on  the  ground  that,  by  express  agreement  of  the  govern- 
ments, an  arbitral  award  put  an  end  to  the  controversy,  and  that  a 
provision  for  an  appeal  would  prolong  the  dispute  which  the  special 
tribunal  was  appointed  to  settle  once  and  for  all.  Although  the  litigat- 
ing nations  can,  by  Article  55  of  the  Convention  of  1899  (Convention 
of  1907,  Article  83),  reserve  the  right  of  revision  in  the  compromis, 
nevertheless  the  opponents  of  revision  and  of  appeal  were  largely 
successful  in  their  endeavors,  as  appears  from  Article  54  of  the  Con- 
vention of  1899,  which  says : 

The  award,  duly  pronounced  and  notified  to  the  agents  of  the 
parties  at  variance,  puts  an  end  to  the  dispute  definitively  and 
without  appeal.^ 

Indeed,  a  recent  writer  on  this  subject,  who  has  himself  had  experi- 
ence both  as  arbiter  and  umpire  in  special  tribunals  formed  under 
the  Hague  Convention,  insists  that  the  duty  of  the  tribunal  is  to 
decide  the  question  submitted,  not  necessarily  to  develop  international 
law ;  that  the  arbiters  should  seek  to  keep  the  nations  at  peace  even  at 
the  expense  of  principles  of  law ;  and  that  the  test  of  the  award  is  its 
acceptability  to  the  governments  in  controversy.^ 

Thus,  Professor  Lammasch,  to  whom  reference  is  made,  says  in  his 
recent  and  very  valuable  work  on  The  Legal  Efifect  of  International 
Awards : 

The  mission  of  the  arbitral  award  is  at  the  present  day  univer- 
sally considered  to  be  to  decide  the  controversy  and  authorita- 
tively adjust  the  dispute.^ 

*  La  sentence  arbitrale,  dument  prononcee  et  notifiee  aux  agents  des  Parties 
en  litige,  decide  definitivement  et  sans  appel  la  contestation.  Cf.  Conv.  of  1907. 
Article  81. 

'  Lammasch,  Die  Rechtskraft  Internationaler  Schiedsspriiche,  1913,  pp.  4,  28, 
52,  62. 

•  Die  Aufgabe  des  Schiedsspruches  wird  heute  ganz  allgemein  dahin  auf- 


AN  INTERNATIONAL  COURT  OF  JUSTICE  39 

This  conception,  as  the  learned  author  is  careful  to  say,  is  essentially 
modern;  as  recently  as  the  middle  of  the  nineteenth  century  arbitral 
awards  were  often  diplomatic  adjustments.  To  quote  his  exact 
language :  "  This  conception  only  gradually  made  its  appearance. 
Even  in  the  arbitral  awards  in  the  middle  of  the  nineteenth  century, 
especially  in  those  delivered  by  sovereigns,  we  find  a  certain  uncertainty 
of  expression,  which  is  the  consequence  of  the  fact  that  arbitral  pro- 
cedure was  not  so  much  a  matter  of  law  as  a  diplomatic  expedient."  ^ 

In  speaking  of  the  manner  in  which  arbitral  awards  become  invested 
with  the  force  of  precedents,  he  says: 

Especially  will  this  happen,  if  arbitral  courts  apply,  in  several 
cases,  principles  which  have  not  been  hitherto  recognized  as  firmly 
established.  However  valuable  this  effect  of  arbitral  decision  may 
be,  it  is  not  its  direct  purpose.^ 

From  these  two  extracts  it  is  clear  that  the  duty  of  the  mixed  com- 
mission or  the  temporary  tribunal  is  to  decide  the  case,  not  necessarily 
to  develop  law.  In  the  next  passage  the  duty  of  the  arbiters  is  stated 
to  be  to  keep  peace  between  the  parties,  even  at  the  expense  of  that 
law  which  they  are  called  upon  to  administer  and  through  whose 
passionless  and  impartial  application  precedents  can  be  developed: 

We  should  not  forget  that  the  arbitral  court  has  not  merely  the 
mission  to  find  law  but  to  keep  peace  between  the  states.  It  would 
not  fulfil  this  mission,  if  it  acted  in  accordance  with  the  maxim: 
Fiat  justitia,  pereat  mundus.  A  judicial  body  that  in  such  a  case 
would  not  take  pains  to  avoid  such  severity  in  the  judgment  as  is 
not  indispensable  to  an  essentially  just  judgment,  would  prevent 
the  defeated  and  perhaps  also  the  victorious  party  from  submitting 
disputes  in  the  future  to  arbitral  adjustment.  It  may  be  in  this 
way  that  law  in  the  concrete  case  loses  something  of  its  fullest  tri- 
umph.^ 

gefasst,  dass  er  die  betreffende  Streitfrage  zu  entscheiden  und  den  Streit  autori- 
tativ  zu  schlichten  habe.    Ibid.,  p.  28. 

'  Diese  Auffassung  ist  aber  erst  allmahlich  zum  Durchbruche  gelangt.  Noch 
in  Schiedsspriichen  aus  Mitte  des  19.  Jahrhunderts,  insbesondere  in  solchen, 
die  von  Souveranen  gefallt  wurden,  finden  wir  eine  gewisse  Unsicherheit  des 
Ausdruckes,  die  die  Folge  davon  ist,  dass  das  Schiedsverfahren  nicht  so  sehr 
als  Rechtsinstitut,  sondern  vielmehr  als  diplomatisches  Expediens  aufgefasst 
wurde.  Lammasch,  Die  Rechtskraft  Internationaler  SchiedssprUche,  1913,  pp. 
28-29. 

*  Insbesondere  dann  wird  dies  eintreten,  wenn  Schiedsgerichte  in  mehreren 
Fallen  Grundsatze,  die  bis  dahin  nicht  als  vollig  feststehend  anerkannt  waren 
immer  wieder  zur  Anwendung  gebracht  haben.  So  wertvoll  diese  Wirkung 
der  Schiedssprechung  auch  ist,  ihre  unmittelbare  Aufgabe  ist  sie  nicht.  Ibid., 
p.  4. 

•  Wir  diirfen  nicht  vergessen,  dass  das  Schiedsgericht  nicht  bless  die  Aufgabe 


40 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


Arbiters  of 
special  tri- 
bunal lack 
esprit  de   corps. 


And  in  a  final  passage,  which  deserves  quotation,  Dr.  Lammasch 
says: 

It  is  a  proof  that  the  arbitral  court  has  done  its  duty,  especially 
if  both  parties  are  pleased  with  the  award,  even  although  some 
hypercritical  people  may  find  fault  with  it  and  accuse  the  court 
of  playing  the  diplomat.^ 

If  the  function  of  the  arbiter  is  as  described  by  the  distinguished 
jurist  whose  views  have  been  quoted — and  it  is  believed  that  his  views 
are  shared  by  many,  if  not  by  the  majority,  of  continental  publicists, 
and  that  they  state  accurately  present  practice — it  is  evident  that  inter- 
national law  is  not  likely  to  be  developed  by  arbitral  awards.  We  do 
not  expect  much  from  raw  recruits  who  have  just  joined  the  colors; 
they  form  a  mob  until  by  practice  and  discipline  they  have  become  an 
army,  united  by  an  esprit  de  corps.  This  process  takes  time,  but  the 
time  spent  in  drilling  recruits  is  justified  by  the  results.  It  would  no 
doubt  be  unfair  to  compare  the  hundred  or  more  judges  of  the  Per- 
manent Court  to  a  company  of  "  recruits  " ;  but  bearing  in  mind  the 
heterogeneous  elements  composing  the  list — statesmen  and  politicians, 
diplomats  and  jurists,  residing  in  different  countries,  having  different 
standards  of  conduct,  trained,  if  trained  at  all,  in  different  systems  of 
law  and  speaking  different  languages — we  must  perforce  admit  that 
the  analogy  is  not  wholly  fanciful,  and  that  the  list  of  judges  lacks  that 
esprit  de  corps  which  can  only  come  from  common  training  and  asso- 
ciation. A  tribunal  of  three  or  five  does  not  necessarily  possess  the 
spirit  essential  to  a  court ;  for  this  spirit  does  not  depend  upon  numbers, 
but  upon  training  and  association  in  a  common  work ;  and  it  may  be 
accepted  without  argument  that  the  members  of  any  tribunal  who 
may  be  personally  unknown  to  each  other,  and  who  have  not  worked 
together  toward  a  common  purpose,  can  not  be  expected  to  approach 
their  task  with  the  poise  and  the  confidence,  the  ease  and  the  grace, 

hat,  Recht  zti  finden,  sondcrn  aiich  den  Frieden  zwischen  den  Staaten  zu  be- 
wahren.  Diese  Aufgabe  wiirde  es  nicht  erfiillcn,  wenn  es  nach  dem  Satze 
handelte :  Fiat  justitia,  pcreat  mundns.  Eine  Judikatur,  die  in  einem  solchen 
Falle  sich  nicht  beiniihen  wiirde,  solche  Scharfen  des  Urteils  zu  vermeiden,  die 
fiir  das  Wesen  eines  gerechten  Spruches  nicht  unentbehrlich  sind.  wiirde  den 
imterliegenden  Staat  und  vielleicht  sogar  den  obsiegcnden  abhalten,  in  Zukunft 
wieder  Streitigkeiten  schiedsgerichtlich  auszutragen.  Es  mag  sein,  dass  auf 
diese  Weise  das  Recht  im  konkreten  Falle  von  seinem  vollsten  Triumphe  etwas 
einbiisst.    Ibid.,  pp.  62-63. 

"^  Insbesondere  dann,  wenn  beide  Parteien  mit  dem  Spruche  zufrieden  sind, 
ist  dies  ein  Beweis,  dass  das  Schiedsgericht  seine  Pflicht  getan  hat,  mogen  auch 
einzelne  Hypcrtheoretiker  daran  etwas  zu  bekritteln  haben,  ihm  den  Vorwurf 
des  "  Diplomatisierens  "  machen.  Lammasch,  Die  Rechtskraft  Internationaler 
Schiedsspruchc,  191 3,  p.  52. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  41 

the  firm  and  unhesitating  step  with  which  professional  judges  enter  a 
court  of  justice. 

Nor  is  it  to  be  demanded  that  judges  coming  together  for  a  particu-  "^^f^^^fl^^ 
lar  occasion  will  promptly  dispose  of  the  case.  Experience  shows  that  P°[s^^nl|h" 
the  procedure  before  such  a  tribunal  is,  as  has  been  stated,  long  drawn 
out,  for  the  judges  are  almost  as  unfamiliar  with  the  procedure  of 
the  tribunal  as  are  the  lawyers,  and  they  can  not  control  proceedings 
before  them  with  the  authority  possessed  by  judges  accustomed  to 
the  trial  of  cases.  Leaving  out  difference  of  training  and  the  difficulty 
of  languages,  which  in  themselves  make  the  administration  of  justice 
difficult,  the  primary  object  of  the  arbiters  is  to  adjust  the  case  to  the 
satisfaction  of  the  governments  which  appointed  them,  not  necessarily 
to  discover  and  apply  principles  of  law  as  is  the  case  with  national 
judges.  Negotiation  and  judicial  process  are  different,  and  the  first 
is  more  time-consuming  than  the  second. 

The  fact  that  arbiters  are  animated  by  the  laudable  desire  to  end  the   Continuity  of 

•'  ,  decision 

dispute,  rather  than  to  decide  it  according  to  law  and  by  so  doing  to  lacking, 
confirm,  perhaps  to  develop  international  law,  and  the  further  fact 
that  they  may  not  sit  again  as  a  court  before  which  their  award  can  be 
cited  as  a  precedent,  naturally  lead  them  to  think  more  of  the  present 
than  of  the  future ;  so  that  the  continuity  of  decision  characteristic  of, 
if  not  absolutely  inherent  in  a  court  of  justice  and  indispensable  to  the 
slow  and  conscious  development  of  law,  is  lacking. 

The  great  objection  to  a  temporary  tribunal  composed  for  the  Jf^fnaif^ 
special  occasion  is  its  tendency  to  compromise  divergent  and  incon-  ^^^promis^e! 
sistent  contentions,  a  defect  which  seems  to  be  inherent  in  the  very 
nature  of  arbitration,  which  has  heretofore  been  looked  upon  as  an 
adjustment  or  a  settlement  rather  than  as  a  judicial  decision.  This 
drawback  to  arbitration  as  at  present  understood  is  real,  not  fanciful ; 
but  even  if  it  were  imaginary,  the  cause  would  be  prejudiced ;  for,  as 
Lord  Mansfield  aptly  said,  it  is  not  enough  that  the  decision  is  just,  it 
must  appear  to  be  just,  or,  if  a  somewhat  trite  classical  allusion  be 
permitted,  Caesar's  wife  must  be  above  suspicion. 

The  reasons  for  suspecting  arbitration  and  the  remedy  for  over-  Jfj^fon*'^ 
coming  the  suspicion  are  thus  pointed  out  by  Mr.  Root :  IrEtfon. 

composition 
of  temporary 
tribunals  and 

I  have  said  many  times  and  in  many  places  that  I  do  not  think   procedure. 
the  difficulty  that  stands  in  the  way  of  arbitration  to-day  is  an  un- 
willingness on  the  part  of  the  civilized  nations  of  the  earth  to  sub- 
mit their  disputes  to  impartial  decision.     I  think  the  difficulty  is  a 
doubt  on  the  part  of  civilized  nations  as  to  getting  an  impartial 


p 


42  AN  INTERNATIONAL  COURT  OF  JUSTICE 

decision.  And  that  doubt  arises  from  some  characteristics  of  arbi- 
tral tribunals,  which  are  very  difficult  to  avoid. 
I  In  the  first  place,  these  tribunals  are  ordinarily  made  up  by 
selecting  publicists,  men  of  public  affairs,  great  civil  servants, 
members  of  the  foreign  offices,  men  trained  to  diplomacy ;  and 
the  inevitable  tendency  is,  and  the  result  often  has  been,  in  the 
majority  of  cases  has  been,  that  the  arbitral  tribunal  simply  sub- 
stitutes itself  for  the  negotiators  of  the  two  parties,  and  negotiates 
a  settlement.  Well,  that  is  quite  a  different  thing  from  submit- 
ting your  views  of  right  and  wrong,  your  views  of  the  facts  and 
the  law  on  which  you  base  your  claims  to  right,  to  the  decision  of 
a  tribunal,  of  a  court.  It  is  merely  handing  over  your  interests 
to  somebody  to  negotiate  for  you ;  and  there  is  a  very  widespread 
reluctance  to  do  that  in  regard  to  many  cases ;  and  the  nearer  the 
question  at  issue  approaches  the  verge  of  the  field  of  policy,  the 
stronger  the  objection  to  doing  that. 

Another  difficulty  is  that  the  arbitral  tribunals,  of  course  being 
made  up  largely  of  members  from  other  countries,  the  real  deci- 
sion ordinarily  being  made  up  by  arbiters  who  come  from  other 
countries,  and  not  from  the  countries  concerned,  questions  have  to 
be  presented  to  men  trained  under  different  systems  of  law,  with 
different  ways  of  thinking,  and  of  looking  at  matters.  There  is  a 
very  wide  difference  between  the  way  in  which  a  civil  lawyer  and 
a  common-law  lawyer  will  approach  a  subject,  and  it  is  sometimes 
pretty  hard  for  them  to  understand  each  other,  even  though  they 
speak  the  same  language,  while  if  they  speak  different  languages 
it  is  still  more  difficult. 

Another  difficulty  is  that  a  large  part  of  the  rules  of  interna- 
tional law  are  still  quite  vague  and  undetermined,  and  upon  many 
of  them,  and  especially  upon  those  out  of  which  controversy  is 
most  likely  to  arise,  different  countries  take  different  views  as  to 
what  the  law  is  and  ought  to  be.  And  no  one  can  tell  how  one 
of  these  extemporized  tribunals,  picked  at  haphazard,  or  upon 
the  best  information  the  negotiators  of  two  countries  can  get — 
no  one  can  tell  what  views  they  are  going  to  take  about  questions 
of  international  law,  or  how  they  are  going  to  approach  subjects 
and  deal  with  them. 

Now  it  has  seemed  to  me  very  clear  that  in  view  of  these  prac- 
tical difficulties  standing  in  the  way  of  our  present  system  of  ar- 
bitration, the  next  step  by  which  the  system  of  peaceable  settle- 
ment of  international  disputes  can  be  advanced,  the  pathway  along 
which  it  can  be  pressed  forward  to  universal  acceptance  and  use, 
is  to  substitute  for  the  kind  of  arbitration  we  have  now,  in  which 
the  arbitrators  proceed  according  to  their  ideas  of  diplomatic 
obligation,  real  courts  where  judges,  acting  under  the  sanctity  of 
the  judicial  oath,  pass  upon  the  rights  of  countries,  as  judges  pass 
upon  the  rights  of  individuals,  in  accordance  with  the  facts  as 
found  and  the  law  as  established.  With  such  tribunals,  which  are 
continuous,  and  composed  of  judges  who  make  it  their  life  busi- 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


43 


ness,  you  will  soon  develop  a  bench  composed  of  men  who  have 
become  familiar  with  the  ways  in  which  the  people  of  every  coun- 
try do  their  business  and  do  their  thinking,  and  you  will  have  a 
gradual  growth  of  definite  rules,  of  fixed  interpretation,  and  of 
established  precedents,  according  to  which  you  may  know  your 
case  will  be  decided.^ 


Lest  it  be  thought  that  the  movement  for  judicial  settlement  is 
confined  to  the  United  States,  the  undersigned  begs  to  quote  the 
measured  language  and  the  unhesitating  approval  of  judicial  decision 
as  distinct  from  arbitral  adjustment,  of  an  eminent  European  publicist, 
Mr.  Ernest  Nys,  who   recently  said: 

Arbitration  is  beset  with  various  difficulties.  There  is  the  diffi- 
culty of  bringing  the  parties  in  controversy  before  the  arbitrator; 
the  tendency  on  the  part  of  the  arbitrator,  alike  in  private  as  well 
as  in  international  law,  to  consider  himself  obliged  to  deal  ten- 
derly with  the  interests  of  the  parties  by  whom  he  was  designated ; 
the  regrettable  tendency  to  dispose  of  the  litigation  by  means  of  a 
compromise,  to  act  as  a  diplomat  and  not  as  a  judge;  the  impossi- 
bility of  creating  a  system  of  jurisprudence  based  upon  an  un- 
broken series  of  consistent  decisions,  and  the  consequent  difficulty 
of  developing  law  by  successive  decisions,  and  the  insuperable 
obstacles  which  almost  invariably  stand  in  the  way  of  revising 
sentences  vitiated  by  essential  error  or  other  substantial  defects. 
On  all  these  points  the  experience  of  recent  years  has  been  con- 
clusive. The  sole  remedy  is  the  creation  of  a  technical  tribunal 
in  which  jurists  will  take  their  places,  where  the  same  line  of 
judgment  will  necessarily  control  and  decide  similar  cases,  thus 
enriching  the  jurisprudence  of  international  law,  and  where  an  ap- 
peal will  correct  errors  of  judgment  which  may  have  crept  in  the 
judgment  of  first  instance.^ 


Mr.  Nys  on 
same  subjects. 


In  the  course  of  these  somewhat  general  observations  the  shortcom- 
ings of  arbitration  as  it  seems  to  the  undersigned  to  be  understood  and 
practiced,  have  been  pointed  out;  and  the  advantages  of  judicial  settle- 
ment as  opposed  to  arbitration,  and  of  a  permanent  judicial  tribunal  as 
contrasted  with  a  temporary  arbitral  tribunal  have  been  suggested  in 
passing,  without  dwelling  upon  them  in  detail.  It  is,  however,  neces- 
sary to  enumerate  the  advantages  of  a  permanent  international  court 
of  justice,  and  to  state,  although  in  summary  form,  the  services  it  can 
reasonably  be  expected  to  render  to  the  nations  creating  it,  not  the 

^  Proceedings  of  American  Society  for  Judicial  Settlement  of  International 
Disputes,  1910,  pp.  11-13. 

'Ernest  Nys,  The  Necessity  of  a  Permanent  Tribunal,  Bulletin  of  American 
Society  for  Judicial  Settlement  of  International  Disputes,  1910,  pp.  25-26. 


Memorandum 
has  heretofore 
dealt  with 
defects  of 
arbitration 
and  of 
temporary 
tribunal; 
from  here  on 
it  considers 
advantages 
of  judicial 
settlement 
by  means  of 
truly    permanent 
court  of  justice. 


44 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


Existence  of 

court  facilitates 
judicial  settle- 
ment of  pri- 
vate disputes. 


Relation  of 
self-redress, 
arbitration 
and  permanent 
judiciary. 


least  important  of  which  will  be  the  example  of  settling  their  legal 
disputes  by  judicial  process. 

It  has  been  suggested  that  if  a  permanent  tribunal  exists  with  its 
composition  known  in  advance  and  ready  to  receive  the  case  when 
presented  to  it,  pressure  may  be  brought  upon  the  nations  in  contro- 
versy to  submit  their  dispute  without  the  delay  which  would  necessarily 
occur  in  the  formation  of  a  temporary  or  special  tribunal.  This  advan- 
tage of  a  permanent  court  is  so  evident  that  it  may  seem  useless  to 
dwell  upon  it,  but  it  is  so  important,  indeed,  fundamental,  that  it  should 
be  considered  at  some  length. 

Individuals  know  that  if  they  can  not  agree,  they  must  submit  their 
quarrel,  if  it  be  of  a  legal  nature,  to  a  court  of  justice,  and  the  knowl- 
edge that  they  must  do  so,  and  the  existence  of  the  court,  ready  to 
receive  and  to  decide  the  case,  either  leads  to  settlement  out  of  court  or 
to  prompt  submission  of  the  case  to  the  court.  It  would  be  intolerable 
to  prospective  litigants  if  a  special  board  or  commission  had  to  be 
appointed,  with  or  without  the  operation  of  government  for  the  trial  of 
their  case  or  cases.  Judicial  process  is  so  familiar,  indeed  so  common- 
place, that  we  hardly  stop  to  think  that  time  was  when  courts  did  not 
exist ;  that  arbiters  were  appointed  by  agreement  of  the  parties  to  avoid 
self-redress,  and  that  from  private  arbitration  by  agreement  of  the 
parties,  courts  of  justice  have  grown  as  affording  a  speedier  and  more 
adequate  remedy  than  arbiters  or  temporary  tribunals  for  the  settle- 
ment of  disputes  arising  between  individuals.  There  is  every  reason 
to  believe  that  nations  will  one  day  be  convinced  of  the  advantage  of 
permanent  tribunals,  for  the  decision  of  their  legal  disputes,  for  na- 
tions are,  after  all,  nothing  but  peoples,  grouped  more  or  less  arti- 
ficially and  familiar  with  judicial  process ;  and  the  historian  of  the 
future  will  look  back  with  wonder  and  amazement  to  the  time  when 
nations  did  not  settle  their  justiciable  disputes  by  judicial  process,  and 
did  not  organize  permanent  courts  for  their  trial  and  disposition.  In- 
deed it  may  be  said  in  this  connection  that  not  only  has  arbitration  by 
private  agreement  or  contract  led  to  permanent  and  official  tribunals, 
for  which  the  history  of  Rome  could  be  vouched,  but  also  that  states 
which  had  constituted  temporary  tribunals  for  the  settlement  of  their 
controversies  have  rejected  such  temporary  tribunals  in  favor  of 
permanent  ones. 

It  could  easily  be  shown,  if  it  were  not  thought  irrelevant  to  the 
present  purpose,  that  self-redress,  everywhere  existing  in  primitive 
society,  yielded  to  arbitration  of  disputes  among  its  members,  by 
means  of  private  contract  between  the  disputants,  by  arbiters  or  judges 


AN  INTERNATIONAL  COURT  OF  JUSTICE  45 

of  the  parties'  own  choice,  selected  for  the  particular  occasion ;  that  in 
the  case  of  Rome,  the  state,  through  the  appropriate  magistrate,  co- 
operated with  the  parties  in  framing  the  issue,  leaving,  however,  to  the 
parties  the  choice  of  the  arbiters  or  judges;  that  an  album  judicum, 
not  unlike  the  list  or  panel  of  judges  created  by  the  First  Peace  Con- 
ference, was  prescribed  by  law  and  drawn  up  and  published  by  the 
magistrate  to  facilitate  the  choice  of  arbiters  or  judges ;  and  that, 
finally,  in  the  reign  of  Diocletian  the  system  of  arbitration  by  contract 
of  the  parties,  with,  however,  the  cooperation  of  the  state,  was  dis- 
carded for  permanent  judicial  officers  appointed  by  the  state  from 
among  its  members.  Were  it  not  self-evident  the  analogy  could  be 
pointed  out  between  the  development  of  arbitration  between  the  na- 
tions and  arbitration  within  Rome,  for  nations  stay  self-redress  by 
contract — a  treaty  is  nothing  more  than  a  contract — and  through  ar- 
biters or  judges  of  their  own  choice,  selected  from  the  newer  album 
judicum,  adjust  their  differences  until  such  time  as  arbitration  shall, 
as  in  Rome,  develop  into  judicial  decision  by  a  permanent  judiciary. 
But  it  would  be  improper  to  do  more  in  this  place  than  to  call  attention 
to  the  development  from  arbitration  to  judicial  settlement,  and  to  men- 
tion the  analogy  which  it  is  hoped  time  will  render  complete.  The 
undersigned  deems  it,  however,  relevant  to  state  the  steps  by  which 
the  United  States  and  Switzerland  have  discarded  the  arbitration  of 
public  differences  by  means  of  temporary  commissions  or  tribunals  for 
judicial  decisions  by  a  permanent  court  of  justice.^ 

But  before  proceeding  further  it  nevertheless  seems  proper  to  com-  The  law  of 

.  ,  ,  evolution 

ment  briefly  upon  the  statements  just  made  rather  than  to  leave  them   injudicial 

.       development. 

as  mere  assertions;  for  if  these  statements  are  really  true,  and  it  is 
believed  that  they  are  true  beyond  the  possibility  of  successful  con- 
tradiction, it  follows  that  arbitration,  however  important  it  may  be  in 
the  administration  of  justice  and  in  the  evolution  of  judicial  pro- 
ceedings, is  not  an  end  in  itself  nor  the  culmination  of  development, 
but  a  mere  step,  albeit  a  very  important  one,  between  self-redress  on 
the  one  hand  and  a  permanent  judiciary  on  the  other;  and  that,  just  as 
arbitration  in  the  beginning  stayed  self-redress  by  an  appeal  to  reason, 
it  later  generated  judicial  procedure  by  which  the  appeal  to  reason  has 
been  made  effective.  That  is  to  say,  there  is  a  law  of  evolution  in  the 
judicial  as  in  the  animate  world  and  that  law  is  from  self-redress 

*  For  the  details  of  this  interesting  development,  see  an  article  by  Ernest 
Nys,  entitled  "  The  Development  and  Formation  of  International  Law " 
{American  Journal  of  International  Lazv,  1912,  vol.  6,  p.  279  ct  seq.,  especially 
pp.  297-299),  and  an  article  by  the  undersigned,  entitled  "The  Evolution  of  a 
Permanent  International  Judiciary"  (Ibid.,  pp.  316-358). 


46  AN  INTERNATIONAL  COURT  OF  JUSTICE 

through  arbitration  to  judicial  proceedings  in  a  permanent  judiciary,  at 
least  in  that  one  country  whose  legal  history  we  know  and  whose  law 
is  to-day,  after  the  lapse  of  a  thousand  years  and  more,  the  basis  of 
the  law  of  many  nations  and  a  fruitful  and  unfailing  source  of  inter- 
national law  itself.^ 

A  second  element  in  this  law  of  judicial  evolution,  as  it  appears  from 
the  history  of  Roman  legal  institutions,  is  that  the  special  tribunal  com- 
posed of  judges  of  the  parties'  choice,  gives  way  to  a  permanent  judi- 
ciary, composed  of  permanent  judges,  chosen  not  merely  for  the  deci- 
sion of  the  case  as  it  arises,  but  in  existence  before  the  case  has  arisen 
and  ready  to  receive  and  to  decide  it. 

But  this  law  of  judicial  evolution  is  of  universal  application  and  is 
therefore  not  less  true  of  the  nations  of  the  world  than  of  the  greatest 
of  them  in  times  past  with  whose  history  we  are  familiar.  Self-redress 
has  existed  and,  to  a  certain  extent,  does  still  exist  between  and 
among  nations,  but  arbitration  by  contract — for  treaty  is  contract — by 
judges  of  their  own  choice,  has  made  its  appearance  in  international 
practice ;  a  panel  has  been  created  and  exists  from  which  judges  are 
selected  by  the  litigating  nations  just  as  a  panel  of  judges  was  created 
and  existed  at  Rome  from  which  the  litigating  parties  chose  the  judge 
or  arbiters ;  special  commissions  or  special  tribunals,  where  they  have 
existed  between  and  among  states  claiming  and  exercising  sovereignty, 
have  produced  permanent  judiciaries  in  the  United  States  and  Switzer- 
land, just  as  the  special  tribunals  of  private  litigants  produced  the  per- 
manent judiciary  of  Rome;  and  finally,  for  the  analogy  is  complete 
although  unconscious  and  more  persuasive  and  inevitable  because  un- 
conscious, the  nations  are,  slowly  it  may  be  but  nevertheless  surely, 
developing  a  permanent  international  judiciary  in  accordance  with  the 
law  of  judicial  evolution  which  the  undersigned  has  felt  himself  justi- 
fied in  formulating  in  this  connection. 

From  the  Declaration  of  Independence  of  1776  until  the  Articles  of 

'  "  The  history  of  the  venerable  system  of  the  civil  law  is  peculiarly  interest- 
ing. It  was  created  and  gradually  matured  on  the  banks  of  the  Tiber,  by 
the  successive  wisdom  of  Roman  statesmen,  magistrates  and  sages ;  and  after 
governing  the  greatest  people  in  the  ancient  world,  for  the  space  of  thirteen  or 
fourteen  centuries,  and  undergoing  extraordinary  vicissitudes  after  the  fall  of 
the  western  empire,  it  was  revived,  admired  and  studied  in  modern  Europe,  on 
account  of  the  variety  and  excellence  of  its  general  principles.  It  is  now  taught 
and  obeyed,  not  only  in  France,  Germany,  Holland,  and  Scotland,  but  in  the 
islands  of  the  Indian  Ocean,  and  on  the  banks  of  the  Mississippi  and  the  St. 
Lawrence.  So  true,  it  seems,  are  the  words  of  d'Aguesseau,  that  'the  grand 
destinies  of  Rome  are  not  yet  accomplished;  she  reigns  throughout  the  world  by 
her  reason,  after  having  ceased  to  reign  by  her  authority.'  "  Kent's  Commen- 
taries on  American  Law,  ist  ed.  (1826),  vol.  i,  p.  481. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  47 

Confederation  of  July  g,  1778,  and  their  final  adoption  in  1781,  the   Development 

*^      •'     ^        '  '     '      .  .  '^  .  '  of  a  permanent 

erstwhile  Colonies  of  Great  Britain,  which  then  constituted  the  United    judiciary  in  the 

r    A  •  United  States. 

States  of  America,  were  independent  states  and  their  government  was 
a  purely  provisional  one,  by  which  they  acted  in  unison  for  the  mainte- 
nance of  their  cause.  They  regarded  themselves  as  independent  and 
equal  states  and  treated  with  one  another  upon  the  basis  of  independence 
and  equality.  They  had  many  disputes  concerning  their  boundaries, 
due  to  the  overlapping  of  colonial  charters,  which  they  endeavored  to 
adjust  by  diplomatic  methods  and  the  appointment  of  commissioners. 
The  methods  of  diplomacy  were  apparently  unsatisfactory,  and  in  Ar- 
ticle 9  of  the  Articles  of  Confederation,  provision  was  made  for  the 
adjustment  of  disputes  between  the  states  by  a  temporary  tribunal 
whose  judges  were  to  be  selected  from  a  panel  or  list  of  thirty-nine 
commissioners  or  judges.  Congress  was  to  be  the  last  resort  in  con- 
troversies between  the  states  over  boundaries,  questions  of  jurisdic- 
tion, and  other  matters.  When  the  authorities  or  authorized  agents  of 
a  state  petitioned  Congress  to  settle  a  dispute  or  difference,  notice  of 
the  fact  was  given  to  the  other  state  in  controversy  and  a  day  set  for 
the  appearance  of  the  two  parties  by  their  agents,  who  were  there- 
upon directed  to  appoint  members  of  the  tribunal  by  common  consent. 
Failing  an  understanding,  Congress  designated  three  citizens  of  each 
of  the  states  of  the  Confederation,  and  from  the  list  thus  formed  each 
party,  beginning  with  the  defendant,  struck  alternately  a  name  until 
only  thirteen  names  remained.  From  these  thirteen,  seven  or  nine 
names  were  drawn  by  lot,  and  the  persons  thus  designated  composed 
the  court,  which  decided  the  controversy  by  a  majority  of  votes.  A 
quorum  of  at  least  five  judges  was  required.  In  case  of  non-appear- 
ance of  one  of  the  parties  without  a  valid  reason,  or  of  refusal  to  take 
part  in  the  formation  of  the  tribunal,  the  Secretary  of  the  Congress 
performed  this  duty  in  its  stead.  The  award  was  final  in  all  cases,  and 
each  state  pledged  itself  to  carry  out  the  award  in  good  faith.  Each 
commissioner  was  required  to  take  an  oath  before  one  of  the  judges 
of  the  supreme  or  of  the  superior  court  of  the  state  in  which  the  tribu- 
nal sat  "  well  and  truly  to  hear  and  determine  the  matter  in  question, 
according  to  the  best  of  his  judgment,  without  favor,  affection  or  hope 
of  reward." 

It  will  be  noted  that  the  members  of  the  tribunal  could  be  appointed 
by  common  consent,  just  as  Article  24  of  the  Hague  Convention  of 
1899  (Convention  of  1907,  Article  45)  for  the  pacific  settlement  of 
international  disputes  provides  that  the  composition  of  the  tribunal  may 
be  by  a  direct  agreement  of  the  parties.     Failing  this  agreement,  the 


48  AN  INTERNATIONAL  COURT  OF  JUSTICE 

appointment  of  the  judges  is  secured  by  express  regulation  (Articles 
24  and  45  of  the  Conventions ;  Article  9  of  the  Articles  of  Confedera- 
tion). It  appears  that  under  the  ninth  article  of  the  Articles  of  Con- 
federation, one  controversy  was  finally  determined  (Pennsylvania  v. 
Connecticut)  ;  that  commissioners  were  appointed  by  mutual  agree- 
ment in  two  controversies,  which  were,  however,  settled  out  of  court 
(Massachusetts  v.  New  York;  South  Carolina  v.  Georgia),  and  that 
there  were  petitions  for  the  appointment  of  a  court  in  some  two  or 
three  other  cases. 

It  is  of  more  than  passing  interest  to  note  that  the  dispute  between 
Pennsylvania  and  Connecticut  was  of  very  considerable  importance 
and  involved  the  possession  of  Wyoming  Valley,  now  Luzerne  County, 
in  Pennsylvania,  which  territory  was  claimed  by  each  state  as  included 
within  its  charter.  The  court  was  appointed  by  direct  agreement  of 
the  parties,  and  it  consisted  as  finally  constituted  of  five  persons,  who 
met  at  Trenton,  New  Jersey,  and  rendered  a  unanimous  judgment  in 
favor  of  Pennsylvania  on  December  30,  1782. 

In  the  case  of  Massachusetts  v.  New  York,  the  parties  likewise 
agreed  (June  9,  1785)  to  the  composition  of  the  temporary  tribunal, 
consisting  of  nine  judges,  without  resorting  to  the  method  of  striking 
out,  provided  for  by  the  ninth  article,  but  this  dispute  was  settled  out 
of  court  by  express  agreement  of  the  parties  (December  16,  1786). 

The  case  of  South  Carolina  v.  Georgia  is  the  only  instance  of  the 
composition  of  the  temporary  tribunal  by  alternately  striking  ofif,  upon 
motion  of  Georgia,  names  from  the  list  of  thirty-nine  commissioners 
or  judges,  until  but  thirteen  remained.  From  the  list  thus  reduced, 
nine  names  were  drawn  to  form  the  court  (September  13,  1785),  but 
it  never  met,  as  the  states  agreed  to  settle  their  diflference  by  com- 
pact. 

The  procedure  can  not  be  said  to  have  been  satisfactory  in  view  of 
the  few  instances  in  which  it  was  employed,  and  of  the  further  fact 
that  it  was  specifically  rejected  by  the  Constitutional  Convention  of 
1787.  That  it  was  regarded  as  an  improvement  upon  diplomatic  ad- 
justment, whatever  its  imperfections  may  have  been,  is  evidenced  by 
the  fact  that  its  main  principles  figured  as  Article  9  in  the  proposed 
Constitution  reported  by  the  Committee  of  Detail,  presented  to  the 
Constitutional  Convention  on  August  6,  1787.  After  profound  and 
prolonged  discussion  the  Convention  rejected  the  method  of  settling 
controversies  between  the  states  by  means  of  temporary  commissions, 
which  thus  passed  out  of  existence ;  but  in  doing  so  it  gave  birth  to  a 
permanent  judiciary,  invested  with  the  power  to  determine  such  con- 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


49 


troversies,  as  appears  from  Article  3,  Section  2,  of  the  Constitution 
as  ultimately  adopted : 


The  judicial  power  shall  extend  ...  to  controversies  between 
two  or  more  states ;  between  a  state  and  citizens  of  another  state ; 
between  citizens  of  different  states ;  between  citizens  of  the  same 
state  claiming  lands  under  grants  of  different  states,  and  between 
a  state,  or  the  citizens  thereof,  and  foreign  states,  citizens  or 
subjects. 

Thus  arbitration  between  the  states  by  means  of  a  temporary  tribu- 
nal, composed  for  the  particular  case,  developed  into  a  permanent  tribu- 
nal for  the  settlement  of  controversies  between  the  states  of  the  Ameri- 
can Union.  Its  success  in  this  capacity  has  justified  the  expectations 
of  its  framers.  It  has  received  and  passed  upon  many  a  dispute, 
which,  to  quote  the  impressive  language  of  Mr.  Justice  Holmes,  "  if 
it  arose  between  independent  sovereignties,  might  lead  to  war."  ^  We 
can  not  resist  the  question:  Will  history  repeat  itself? 

In  like  manner  the  example  of  Switzerland  may  be  cited,  where  for  Development 

^  -^  _  of  a  permanent 

centuries  arbitration  was  not  merely  the  practice  of  individuals,  but  the  judiciary  in 

•'  ^  _  '  Switzerland. 

method  of  settling  disputes  between  the  cantons,  which  regarded  them- 
selves as  sovereign  and  exercised  the  rights  of  sovereignty.  From 
1291  to  1351,  arbitration  by  self-constituted  arbiters  was  the  favorite 
method  of  settling  disputes  between  the  cantons;  but  from  1351  to 
1848,  temporary  tribunals  were  composed  by  joint  action  of  the  can- 
tons in  dispute  to  settle  their  controversies.  Arbitration  was  thus 
tested,  not  during  a  decade,  as  in  the  case  of  the  United  States,  but 
during  centuries,  and  it  was  discarded  in  the  year  1848  because  it  did 
not  possess,  in  the  opinion  of  the  Swiss  burghers,  the  advantages  of 
judicial  settlement.  The  arbiters  regarded  it  as  their  duty  to  com- 
promise the  dispute,  and  before  attempting  to  apply  principles  of  law 
to  its  settlement,  they  proposed  an  adjustment,  which,  if  accepted  by 
the  parties,  ended  the  controversy.  If  not  accepted,  they  then  de- 
cided the  question  according  to  what  they  believed  to  be  principles  of 
law  and  justice.  It  is  thus  seen  that  mediation  and  compromise  were 
regarded  during  a  long  period  of  time  as  inherent  in  the  nature  and 
practice  of  arbitration ;  but  a  long  and  varied  experience  convinced 
the  Swiss — as  jealous  of  their  independence,  national  and  cantonal,  as 
any  people  that  ever  existed — that  arbitration  by  temporary  tribunals 
composed  of  judges  of  the  cantons'  choice  did  not  adequately  adjust 
disputes  of  a  legal  nature.     They  therefore  renounced  the  system  of 

*  Missouri  v.  Illinois,  200  United  States  Reports,  496,  at  p.  518. 


50  AN  INTERNATIONAL  COURT  OF  JUSTICE 

arbitration  in  the  year  1848,  and  replaced  it  by  the  present  permanent 
federal  tribunal. 

A  distinguished  Swiss  publicist,  at  one  time  president  of  the  Con- 
federation and  of  the  Federal  Tribunal  whose  advantages  he  states, 
says,  in  speaking  of  arbitration,  that 

The  drawbacks  of  this  system  are  in  general  numerous.  In  the 
first  place,  the  constitution  of  a  tribunal  for  each  case  and  the 
necessity  of  agreeing  upon  certain  rules  of  procedure  in  every  in- 
stance, require  a  disproportionate  expenditure  of  energy.  Again, 
there  is  no  guarantee  that  the  composition  of  these  tribunals  will  be 
impartial,  and  a  certain  equality  of  the  parties  is  obtained  only  by 
doubling  the  evil  of  the  partial  composition  of  the  tribunal  and 
thus  neutralizing  it  to  some  extent.  Then,  in  these  occasional 
tribunals  {tribunaux  de  hasard)  the  organization  of  the  procedure 
is  defective,  and  it  is  consequently  difficult  to  follow  the  details  of 
the  case.  Moreover,  the  case  itself  frequently  drags  on  to  great 
length  and  becomes  exceedingly  expensive.  Finally,  questions  of 
jurisdiction  and  all  kinds  of  difficulties  arise  concerning  the  ex- 
ecution of  the  awards,  so  that  even  the  result,  which  has  been 
reached  with  so  much  trouble,  is  uncertain.^ 

In  another  passage,  which  although  written  with  an  eye  to  Switzer- 
land is  nevertheless  capable  of  a  broader,  indeed  an  international  appli- 
cation, the  same  publicist  writes : 

When  political  association  becomes  more  intimate  and  consistent, 
progress  leads  generally  and  naturally  to  the  legally  organized  tri- 
bunal. Many  advantages  result  from  this.  A  judge  is  appointed 
for  a  whole  series  of  cases  without  reference  to  any  particular  case. 
Those  who  appoint  him  are  absolutely  impartial  and  can  care- 
fully weigh  his  moral  qualifications  and  technical  ability;  a  fixed 
order  of  procedure,  substantial  continuity  in  the  decision  of  cases, 
and  clearness  in  execution,  spring  into  being.  Finally,  the  power 
of  the  judge  becomes  a  strong  bulwark  in  public  life  against 
whims  and  arbitrariness,  from  whatever  source  they  may  arise. 
The  advantages  of  a  legal  regulation  of  judicial  functions  far  out- 
weigh the  few  drawbacks  that  may  exist,  particularly  when  the 
right  is  reserved  to  resort,  in  certain  special  cases,  to  tribunals 
of  arbitration  and  to  challenge  a  judge  in  an  ordinary  tribunal, 
who,  in  an  individual  case,  may  lack  the  indispensable  quality  of 
impartiality.^ 

It  may  be  objected,  however,  that  permanent  tribunals  of  the  kind 
specified  are  only  possible  in  a  federal  state  the  members  of  which 

1  Dubs,  Droit  Public  dc  la  Confederation  Suisse,  1878,  vol.  ii,  pp.  113-114. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  51 

have  renounced  their  sovereignty,  and  that  the  establishment  of  an 
international  tribunal  presupposes  something  of  an  approach  to  a  fed- 
eration of  the  world. 

Indeed,  Professor  Lammasch  has  voiced  this  criticism,  saying  in  a 
recent  publication  that  "  this  reference  is  not  in  point  to  one  who  does 
not  believe  in  the  federation  of  the  world."  ^ 

In  reply,  it  is  proper  to  observe  that  the  states  of  the  American 
Union  consider  themselves  to  be  sovereign  states — not  provinces  pos- 
sessing local  self-government,  and  that  the  cantons  of  Switzerland 
specifically  declare  in  Article  3  of  the  Constitution  of  1874  that  they 
are  sovereign  "  so  far  as  their  sovereignty  is  not  limited  by  the  Federal 
Constitution,"  and  that  they  "  exercise  the  rights  which  are  not  dele- 
gated to  the  Federal  Government." 

If  the  establishment  of  an  international  court  depended  upon  the   Establishment 

'  ^  of  proposed 

federation  of  the  world,  the  undersigned  would  not  favor  it,  as  he  be-  court  neither 

"^  presupposes 

lieves  in  the  independence  and  equality  of  states,  whether  they  be  large   nor  requires 

^  n  .7  >  JO        federation  of 

or  small,  or  whether  their  peoples  be  many  or  few.  He  would  con-  the  world, 
sider  a  federation  of  the  nations  for  all  purposes  not  merely  as  a 
calamity  in  itself,  but  as  destructive  of  international  law,  as  he  is  firmly 
convinced  that  the  prosperity  of  the  world  at  large  is  based  upon  the 
separate  and  independent  existence  of  nations  and  their  cooperation  as 
such  independent  and  separate  nations  for  a  common  purpose  towards 
a  common  goal. 

The  creation  and  successful  operation  of  the  many  international 
unions,  too  numerous  to  mention  in  this  connection,  show  that  nations 
may  safely  form  unions  for  particular  purposes  without  the  sacrifice 
of  independence — indeed,  sovereignty  and  independence  are  not  neces- 
sarily involved,  as  self-governing  colonies  are  members — and  there 
seems  to  be  no  essential  difference  between  the  establishment  of  a 
Universal  Postal  Union  for  a  special  purpose  and  the  creation  of  a 
judicial  union  for  the  administration  of  justice  between  states. 

It  appears,  therefore,  that  a  judicial  union  of  all  members  of  the   a  judicial 
society  of  nations,  or  of  a  limited  number  of  them,  is  possible,  with-    universal  Postal 
out  impairing  the  independence  and  equality  of  nations,  which  are  that°rs' required, 
fundamental  concepts  of  international  law,  just  as  a  Universal  Postal 
Union,  with  an  agreement  of  the  parties  to  such  a  convention  for  the 
settlement  of  their  postal  disputes  by  arbitration,  has  been  and  is 

1  Fur  den,  der  nicht  an  die  Weltfoderation  glaubt,  ist  dieser  Hinweis  jedoch 
nicht  bestimmend.  Lammasch's  Lehr«  von  der  Schiedsgerichtsbarkeit  in  ihi|em 
ganzen  Umfange  (Handbuch  des  Volkerrechts,  herausgegeben  von  Dr.  Stier- 
Somlo,  dritte  Abteilung,  erster  Abschnitt,  1913,  p.  139)  • 


52  AN  INTERNATIONAL  COURT  OF  JUSTICE 

practicable.     Thus,  Article  43  of  the  Universal  Postal  Convention, 
signed  at  Rome,  May  26,  1906,  provides : 

1.  In  case  of  disagreement  between  two  or  several  members  of 
the  Union,  relating  to  the  interpretation  of  the  present  Conven- 
tion or  to  the  responsibility  of  an  administration  arising  from  the 
application  of  the  said  Convention,  the  question  in  dispute  is  regu- 
lated by  an  arbitral  judgment.  For  this  purpose  each  of  the  ad- 
ministrations concerned  chooses  a  member  of  the  Union  not  di- 
rectly interested  in  the  matter. 

2.  The  decision  of  the  arbiters  is  rendered  by  an  absolute  ma- 
jority of  votes. 

3.  In  case  the  votes  are  equally  divided,  the  arbiters  choose,  to 
decide  the  difiference,  another  administration  equally  disinterested 
in  the  dispute. 

4.  The  provisions  of  the  present  article  apply  equally  to  all  ar- 
rangements concluded  by  virtue  of  Article  19  of  this  Convention.^ 

What  has  been  done  in  one  case  may  be  done  in  another.  It  is  im- 
possible to  hold  that  a  union  of  nations  for  postal  matters  is  feasible, 
and  that  a  similar  union  of  nations  for  the  settlement  of  their  legal 
disputes  is  not  feasible.  A  permanent  tribunal  can,  it  is  submitted,  be 
created  either  for  all  nations,  or  for  such  of  them  as  wish  to  create 
such  a  tribunal.  For  reasons  which  have  been  previously  stated  and 
will  be  developed  later  at  greater  length,  it  will  be  easier  to  create  a 
tribunal  for  a  limited  number  of  nations  than  one  for  all  nations  recog- 
nizing and  applying  international  law  in  their  mutual  relations.  And 
it  is  confidently  affirmed  that  a  permanent  tribunal,  composed  of  judges 
ready  and  willing  to  decide  disputes  submitted  to  them,  would  by  its 
mere  existence  attract  disputes,  and  by  their  prompt  and  impartial 
determination,  contribute  to  the  maintenance  of  peace ;  for,  in  the  opin- 
ion of  the  undersigned,  peace  can  only  be  permanent,  and  is  only 
desirable,  when  based  upon  principles  of  justice. 

It  has  been  stated  that  arbitral  awards  are  more  or  less  in  the  nature 

M°  En  cas  de  dissentiment  entre  deux  ou  plusieurs  membres  de  rUnion, 
relativement  a  I'interpretation  de  la  presente  Convention  ou  a  la  responsabilite 
derivant,  pour  une  Administration,  de  I'application  de  ladite  Convention,  la 
question  en  litige  est  reglee  par  jugement  arbitral.  A  cet  effet,  chacune  des 
Administrations  en  cause  choisit  un  autre  membre  de  I'Union  qui  n'est  pas 
directement  interesse  dans  I'affaire. 

2°  La  decision  des  arbitres  est  donnee  a  la  majorite  absolue  des  voix. 

3°  En  cas  de  partage  des  voix,  les  arbitres  choisissent,  pour  trancher  le 
differend,  une  autre  Administration  egalement  desinteressee  dans  le  litige. 

4°  Les  dispositions  du  present  Article  s'appliquent  egalement  a  tous  les 
arrangements  conclus  en  vertu  de  I'Article  19  precedent.  Reciieil  des  Traites 
du  XX^  Steele,  1906,  p.  340. 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


53 


of  compromises,  and  the  fear  has  been  expressed  that  nations  will  pre- 
fer to  compromise  disputes  through  their  direct  agents,  rather  than 
through  arbiters  not  directly  responsible  to  them.  The  truth  of  the 
first  statement  can,  it  is  believed,  be  established  by  an  examination  not 
merely  of  the  awards  of  mixed  commissions  but  of  the  awards  of  the 
so-called  Permanent  Court  of  Arbitration,  but  for  present  purposes  the 
truth  of  the  statement  will  be  assumed. 

The  second  statement  can  not  be  proved,  although  it  would  appear 
evident  from  analogy  that  nations,  like  individuals,  would  prefer  to 
have  their  controversies  settled  by  a  method  which  enables  them  to 
predict  in  advance  the  probable  consequences,  and  to  weigh  and  bal- 
ance the  advantages  and  disadvantages  of  the  probable  decision,  before 
the  case  is  submitted  to  the  court.  It  is  not  maintained  that  the  de- 
cision of  a  court  of  justice  can  be  predicted  with  absolute  certainty,  for, 
in  final  analysis,  the  decision  turns  upon  the  existence  and  application 
of  a  principle  of  law  contended  for  by  one  litigant,  or  upon  the  existence 
and  application  of  a  different  principle  of  law  contended  for  by  the 
other  litigant.  The  decision,  however,  can  be  predicted  in  the  alterna- 
tive, which  is  not  the  case  with  arbitral  awards.  In  the  case  of  judicial 
questions,  nations  can  submit  their  disputes  with  full  knowledge  of  the 
consequences,  and  agree  or  refuse  to  submit  the  particular  dispute  in 
the  fullness  of  knowledge.  Should  the  proposed  tribunal  justify  the 
hopes  and  expectations  of  its  partisans,  and  should  the  nations  resort 
to  it  even  with  less  frequency  than  individuals  resort  to  national 
courts,  it  is  evident  that  the  habit  to  submit  questions  of  a  legal  nature 
would  be  created;  and  if  the  court  composed  of  permanent  judges  de- 
cided according  to  principles  of  law  and  of  justice,  its  decisions  would 
tend,  like  those  of  national  courts,  to  develop  the  law  which  they  pro- 
fess to  interpret.  A  line  of  precedents  would  be  established,  which 
the  court  would  be  forced  to  follow  in  like  cases,  just  as  do  national 
courts;  for  international  judges  could  not  stultify  themselves  by  re- 
fusing to  accept  a  decision  as  binding,  which  they  themselves  had  de- 
livered. Precedent  would  thus  be  established,  the  continuity  of  in- 
ternational decisions  introduced,  and  international  law  would  be 
developed  through  judicial  decisions  just  as  clearly,  as  easily,  and  as 
certainly  as  the  common  law  of  England  has  been  developed  by  a 
long  line  of  trained  judges  acting  under  a  sense  of  judicial  respon- 
sibility. 

It  is  not  only  the  common  law  that  the  judges  of  England  have  in- 
terpreted and  developed.  International  law  is  under  deep  and  abiding 
obligations  to  the  great  Lord  Stowell  for  a  long  line  of  decisions  deal- 


Arbitral    awards 
smack  of  _ 
compromise. 


Judicial  deci- 
sion can  be 
predicted  in 
alternative 
and  would 
attract    nations. 


Results  of 
successful 
operation  of 
truly  perma- 
nent court;   cre- 
ation of  habit 
to  resort  to  it; 
creation  of 
precedents; 
development 
of  law. 


54 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


Development 
of  law  by 
judicial 
decision. 


ing  with  many  phases  of  the  law  of  nations,  particularly  with  questions 
of  maritime  law.  The  decisions  of  the  American  judges,  Marshall  and 
Story,  are  also  classics  of  international  law,  and  it  has  been  estimated 
that  some  two  thousand  cases  decided  by  the  Supreme  Court  of  the 
United  States  have  involved,  to  a  greater  or  lesser  degree,  principles  of 
the  law  of  nations.  It  may  be  further  said  by  way  of  illustration,  and 
as  pointing  out  the  consequences  of  judicial  decision,  that  the  constitu- 
tional law  of  the  United  States  has  been  built  up  by  carefully  considered 
judgments  of  the  Supreme  Court,  and  that  an  international  tribunal, 
composed  of  competent  judges  holding  office  for  a  long  period  of  years, 
and  possessing  the  confidence  of  nations,  would  render  the  same  service 
to  the  nations  at  large  as  the  Supreme  Court  has  rendered  to  the  states 
of  the  American  Union.  A  system  of  international  law  would  be  de- 
veloped to  meet  the  needs  of  nations,  and  be  given  the  symmetry  of  a 
code,  just  as  the  constitutional  law  of  the  United  States  has  been 
developed  by  judicial  decision,  and  been  given  the  symmetry  of  a 
code. 

As  indicating  the  process  by  which  this  has  been  accomplished,  a 
passage  is  quoted  from  a  famous  judgment  of  Lord  Stowell  in  the  do- 
main of  international  law,  whose  decisions  have  been  so  influential  in 
shaping  and  developing  the  law  of  prize.  In  the  case  of  The  Atalanta,^ 
decided  in  1808,  that  illustrious  judge  said : 


Decision  of 
proposed    court 
binds  parties  to 
its  creation, 
although  not 
parties  to  suit. 


I  am  warranted  to  hold  that  it  is  an  act  which  will  afifect  the 
vehicle,  without  any  fear  of  incurring  the  imputation,  which  is 
sometimes  strangely  cast  upon  this  court,  that  it  is  guilty  of  inter- 
polations in  the  laws  of  nations.  If  the  court  took  upon  itself  to 
assume  principles  in  themselves  novel,  it  might  justly  incur  such  an 
imputation;  but  to  apply  established  principles  to  new  cases,  can 
not  surely  be  so  considered.  All  law  is  resolvable  into  general 
principles :  The  cases  which  may  arise  under  new  combinations 
of  circumstances,  leading  to  an  extended  application  of  principles, 
ancient  and  recognized,  by  just  corollaries,  may  be  infinite;  but  so 
long  as  the  continuity  of  the  original  and  established  principles  is 
preserved  pure  and  unbroken,  the  practice  is  not  new,  nor  is  it 
justly  chargeable  with  being  an  innovation  on  the  ancient  law  when, 
in  fact,  the  court  does  nothing  more  than  apply  old  principles  to 
new  circumstances.^ 

In  the  next  place,  the  judgment  of  an  international  court  would 
bind,  not  merely  the  parties  to  the  particular  dispute,  but  also  the  na- 
tions which  were  parties  to  its  creation.    If  it  were  truly  international, 

^  6  C.  Robinson's  Reports,  440. 
'  Ibid.,  458. 


AN    INTERNATIONAL    COURT    OF    JUSTICE  55 

in  the  sense  that  the  court  was  the  creature  of  all  members  of  the  so- 
ciety of  nations,  its  decisions  would  bind  all  its  members.  If  composed 
of  a  lesser  number,  it  would  bind  that  number,  however  large  or 
small. 

In  thus  stating  boldly  and  without  argument  that  the  decisions  of  a 
permanent  court  of  the  kind  proposed  would  bind  not  only  the  litigat- 
ing nations,  but  also  the  powers  which  are  parties  to  its  creation,  the 
undersigned  is  well  aware  that,  stated  as  a  general  principle,  this  con- 
tention is  subject  to  criticism.  But  he  believes  that,  in  fact  if  not  in 
theory,  the  inevitable  consequence  of  the  successful  operation  of  the 
court  would  be  as  stated.  It  is  true  that  decisions  of  courts  other  than 
those  of  Great  Britain  and  the  United  States  are  not  looked  upon  as 
precedents  in  the  sense  that  they  are  binding  upon  courts  when  passing 
upon  subsequent  cases  of  a  like  nature.  But  the  authority  of  the  ad- 
judged case  is  nevertheless  very  persuasive,  and,  as  will  be  shown  later 
in  a  passage  quoted  from  Professor  Wambaugh,  the  tendency  of  all 
courts  is,  whether  they  administer  the  principles  of  civil  or  common 
law,  to  follow  carefully  considered  judgments.  Again,  it  is  true  that 
the  judgment  of  a  court  only  binds  the  parties  to  it,  and  that  other 
persons  may  bring  a  suit  of  a  similar  nature  in  the  hope  of  obtaining  a 
dififerent  judgment.  But  if  the  court  be  composed  of  the  same  judges, 
and  if  the  previous  case  has  been  carefully  argued  and  considered,  it 
is  clear  that  the  inevitable  tendency  is  to  follow  the  decision  in  the  other 
case;  for  if  the  judges  did  not  do  so,  they  would  seem  to  tax  themselves 
with  carelessness  in  the  former  case,  or  partiality  in  the  present  one. 
It  follows  therefore  that  although  the  judgment  directly  binds  only  the 
individual  litigants,  it  nevertheless  indirectly  binds  all  others  in  like 
circumstances.  Lest  this  effect  of  a  judgment  should  seem  to  be  con- 
fined to  private  law  and  to  private  parties  and  not  to  be  applicable  to 
public  law  and  to  states  as  such,  the  undersigned  refers  to  the  many 
decisions  of  the  Supreme  Court  of  the  United  States,  in  which  in- 
dividual states  of  the  American  Union  have  been  parties.  It  may  be 
objected  that  these  states  are  not  sovereign,  and  that  analogies  drawn 
from  them  are  therefore  inapplicable  to  the  members  of  the  society  of 
nations.  It  is  a  fact,  however,  that  the  states  are  frequently  referred 
to  as  sovereign  in  the  reports  of  the  Supreme  Court ;  that  as  sovereign 
states,  they  can  not  be  sued  without  their  consent ;  ^  that  execution  can 

*  In  the  case  of  Beers  v.  Arkansas  (20  Howard,  527),  decided  by  the'  Supreme 
Court  in  1857,  Mr.  Chief  Justice  Taney  said,  and  appHed  the  principle  of  law  to 
the  State  of  Arkansas:     "It  is  an  established  principle  of  jurisprudence  in  all 
civilized  nations  that  the  sovereign  can  not  be  sued  in  its  own  courts,  or  in  any     \ 
other,  without  its  consent  and  permission."  ^ 


7' 


56  AN  INTERNATIONAL  COURT  OF  JUSTICE 

not  be  issued  against  them ;  ^  that  the  Supreme  Court  regards  itself 
when  passing  upon  controversies  between  them  as  an  international 
court ;  ^  and  that  international  law  is  followed  where  applicable.^  Per- 
haps the  term  "  quasi-sovereign  "  is  more  accurate,*  but  for  present 
purposes  the  nomenclature  is  immaterial,  as  the  states  can  only  be  sued 
by  one  another  by  virtue  of  general  consent  given  in  the  Constitution, 
not  by  citizens  or  subjects  as  such,  and  the  judgment  in  a  suit  between 
states  is  not  executed  by  force,  but  compliance  with  it  depends  solely 
upon  the  good  faith  of  the  states,  as  in  the  case  of  independent  na- 
tions.^ As  in  the  case  of  individuals,  the  judgment  merely  binds  the 
parties  to  the  record,  but,  again,  as  in  the  case  of  individuals,  the  de- 
cisions are  followed  in  like  cases,  so  that,  in  fact  if  not  in  theory,  the 
judgment  affects  the  forty-eight  states  of  the  American  Union  because 
each  state  knows  that  the  law  declared  in  one  case  will  be  applied  in 
another  of  a  like  nature.  It  is  believed,  therefore,  that  nations  parties 
to  a  judicial  union  would  inevitably  be  bound  by  the  judgments  of  the 
court  of  the  union,  even  although  there  were  no  positive  provision  to 
this  effect  in  the  convention  creating  it. 

The  difference  between  a  temporary  tribunal,  organized  for  a  special 

*  In  the  extradition  of  an  alleged  criminal  who  had  taken  refuge  in  Ohio,  it 
was  held  by  Chief  Justice  Taney,  speaking  for  a  unanimous  court,  that  it  was  the 
duty  of  the  Governor  of  the  State  to  extradite  a  criminal,  "  but  if  the  Governor 
of  Ohio  refuses  to  discharge  this  duty,  there  is  no  power  delegated  to  the 
general  government,  either  through  the  Judicial  Department  or  any  other 
department,  to  use  any  coercive  means  to  compel  him."  Kentucky  v.  Dennison, 
24  Howard,  66. 

^  In  Virginia  v.  West  Virginia,  decided  by  the  Supreme  Court  in  191 1  (220 
United  States  Reports,  i),  Mr.  Justice  Holmes,  delivering  the  unanimous  opinion 
of  the  court,  said  that  "  the  case  is  to  be  considered  in  the  untechnical  spirit 
proper  for  dealing  with  a  quasi-international  controversy,  remembering  that 
there  is  no  municipal  code  governing  the  matter,  and  that  this  court  may  be 
called  on  to  adjust  differences  that  can  not  be  dealt  with  by  Congress  or  disposed 
of  by  the  legislature  of  either  state  alone." 

'In  Virginia  v.  Tennessee  (148  United  States  Reports,  p.  503),  the  court 
decided  the  controversy  between  the  states  according  to  the  doctrine  of  prescrip- 
tion laid  down  by  Vattel:  "The  tranquillity  of  the  people,  the  safety  of  States, 
the  happiness  of  the  human  race  do  not  allow  that  the  possessions,  empire,  and 
other  rights  of  nations  should  remain  uncertain,  subject  to  dispute  and  ever 
ready  to  occasion  bloody  wars.  Between  nations,  therefore,  it  becomes  necessary 
to  admit  prescription  founded  on  length  of  time  as  a  valid  and  incontestable 
title."    Vattel,  La7v  of  Nations,  book  ii,  c.  ii,  sec.  149. 

*  In  Georgia  v.  The  Tennessee  Copper  Company,  decided  in  1907,  Mr.  Justice 
Holmes  said:  "This  is  a  suit  by  a  State  for  an  injury  to  it  in  its  capacity  as 
quasi-sovereign."     206  United  States  Reports,  230. 

'  It  is  common  knowledge  that  the  State  of  Georgia  refused  to  obey  the 
judgment  of  the  Supreme  Court  in  the  case  of  the  Cherokee  Nation  v.  State 
of  Georgia  (1831,  5  Peters,  i)  ;  that  President  Jackson  declined  to  support  the 
court's  decision  to  the  same  effect  in  Worcester  v.  Georgia  (6  Peters,  521), 
saying :    "  John  Marshall  has  made  his  decision ;  now  let  him  enforce  it !  " 


AN    INTERNATIONAL    COURT    OF    JUSTICE  57 

purpose  and  binding  two  nations  in  controversy,  and  a  court  composed 
of  many  nations,  whose  decision  binds  each  and  all  in  a  like  or  similar 
case,  is  thus  evident.  The  decision  of  the  permanent  court  would  de- 
clare the  law  for  all  the  states  which  had  cooperated  in  its  establish- 
ment. Each  state  would  thus  have  an  interest  in  the  appointment  of 
competent  judges,  because  the  judgment  would  affect  them  in  a  like 
case,  just  as  if  they  were  parties  to  the  dispute.  The  principle  under- 
lying the  decision  would  by  the  action  of  the  court  become  the  law  of 
all  the  countries  constituting  the  tribunal,  just  as  a  decision  of  the  Su- 
preme Court  of  the  United  States  binds  each  of  the  states  of  the 
American  Union.  In  consenting  to  the  Constitution,  the  original  thir- 
teen states  agreed  to  be  bound  by  its  provisions,  and  each  state  sub- 
sequently admitted  to  the  Union  agrees  to  be  bound  by  the  provisions 
of  the  Constitution. 

It  mav  be  said  that  such  a  court  would  be  in  effect  a  legislature,  and   Objection  that 

•'  T  1         1       •     1     proposed  court 

that  it  would  create  the  law  as  well  as  interpret  it.    It  can  not  be  denied   would  legislate 

refuted  by 

that  a  court  does  make  law,  and  it  is  believed  that  judge-made  law  is   action  of 

.  Great  Britian 

equal  to,  if  not  superior  to,  statutory  law.    It  is,  however,  not  neces-   towards  Ar- 
sary  that  the  international  court  should  be  invested  with  the  functions   Prize  Court 

■'  .....  Convention. 

of  a  legislature  because  the  parties  can,  in  submitting  the  case,  pre- 
scribe the  principles  of  law  to  be  applied,  if  such  principles  exist,  and 
if  they  do  not  exist,  they  can  create  them,  as  Great  Britain  and  the 
United  States  did  in  the  case  of  the  Three  Rules  of  Washington  con- 
tained in  the  Treaty  of  Washington  of  1871,  for  the  settlement  of  the 
Alabama  cases.  That  is  to  say,  the  nations  in  controversy  may  deter- 
mine the  principles  of  law  to  be  applied  in  advance  of  the  decision, 
and  if  those  principles  commend  themselves  to  the  other  nations,  they 
become  embodied  in  international  law ;  or  the  nations  may,  by  general 
agreement,  determine  the  principles  of  law  to  be  applied  by  the  court 
in  those  branches  of  international  law  which  may  be  regarded  as  not 
sufficiently  clear,  or  not  so  generally  recognized  as  to  supply  the  court 
with  the  principles  of  law  which  it  is  to  administer.  A  striking  example 
of  this  is  furnished  by  the  action  of  the  powers  in  regard  to  the  Prize 
Court  Convention  adopted  by  the  Second  Peace  Conference.  Article  7 
of  this  very  important  document  provides  that: 

If  a  question  of  law  to  be  decided  is  covered  by  a  treaty  in  force 
between  the  belligerent  captor  and  a  power  which  is  itself  or  whose 
subject  or  citizen  is  a  party  to  the  proceedings,  the  court  is  gov- 
erned by  the  provisions  of  the  said  treaty. 

In  the  absence  of  such  provisions,  the  court  shall  apply  the  rules 
of  international  law.    If  no  generally  recognized  rule  exists,  the 


58  AN  INTERNATIONAL  COURT  OF  JUSTICE 

court  shall  give  judgment  in  accordance  with  the  general  principles 
of  justice  and  equity.^ 

This  article  deals  with  three  different  and  important  situations. 
In  the  first  place,  if  a  question  of  law  is  covered  by  a  treaty  between 
the  two  countries,  then  the  treaty  is  to  be  applied  and  interpreted 
by  the  court,  as  it  is  at  once  the  origin  and  measure  of  the  rights 
of  the  contending  parties.  In  the  next  place,  if  there  is  no  such  treaty 
or  convention,  the  court  is  to  apply  the  rules  of  international  law; 
but  it  frequently  happens  that  a  rule  of  law  is  claimed  by  one  nation 
or  group  of  nations  to  exist  and  to  be  controlling,  whereas  another 
nation  or  group  of  nations  maintains  with  equal  earnestness  that  a 
different  rule  of  law  exists  and  applies.  As  an  example  of  this,  the 
difference  of  opinion  concerning  the  law  of  blockade  may  be  cited. 
Continental  practice  differs  in  certain  important  particulars  from  Anglo- 
American  practice,  and  the  advocates  of  each  theory  maintain  that 
their  conceptions  are  in  accordance  with  international  law.  Now,  if 
the  Prize  Court,  when  established,  were  called  upon  to  decide  a  ques- 
tion involving  blockade,  it  is  evident  that  the  court  would  be  forced 
to  adopt  one  or  the  other  contention,  for,  as  they  are  inconsistent,  both 
could  not  be  adopted.  The  difficulty  is  not  remedied  by  the  statement 
that  if  no  generally  recognized  rule  exists,  the  court  shall  judge  ac- 
cording to  the  general  principles  of  justice  and  equity,  because  the  con- 
tending nations  have  their  own  views  as  to  justice  and  equity,  and  they 
might  and  probably  would  be  unwilling  to  allow  the  tribunal  to  de- 
cide these  questions  for  them,  as  they  might  be  considered  by  the 
powers  as  of  vital  importance.  Therefore,  Great  Britain  refused  to 
ratify  the  Prize  Court  Convention  and  to  become  a  party  to  the  Prize 
Court  unless  an  agreement  were  reached  in  advance  upon  certain 
branches  of  prize  law  which  the  court  might  be  called  upon  to  in- 
terpret and  apply,  as,  to  quote  the  exact  language  of  the  British  Gov- 
ernment, "  it  would  be  difficult,  if  not  impossible,  for  His  Majesty's 
Government  to  carry  the  legislation  necessary  to  give  effect  to  the  con- 
vention unless  they  could  assure  both  Houses  of  the  British  Parlia- 
ment that  some  more  definite  understanding  had  been  reached  as  to 
the  rules  by  which  the  new  tribunal  would  be  governed."    The  result 

*  Si  la  question  de  droit  a  resoudre  est  prevue  par  une  Convention  en  vigueur 
entre  le  belligerent  capteur  et  la  Puissance  qui  est  elle-meme  partie  du  litige, 
la  Cour  se  conforme  aux  stipulations  de  ladite  Convention. 

A  defaut  de  telles  stipulations,  la  Cour  applique  les  regies  du  droit  interna- 
tional. Si  des  regies  generalement  reconnues  n'existent  pas,  la  Cour  statue 
d'apres  les  principes  generaux  de  la  jurisprudence  et  de  I'equite. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  59 

was  that  Great  Britain  called  a  conference  of  some  ten  maritime  pow- 
ers to  consider  the  subjects  embraced  in  the  call,  in  the  hope  that, 
through  discussion  and  concession,  an  agreement  might  be  reached 
upon  them.  The  Conference  met  at  London  on  December  4,  1908,  and 
adopted,  on  February  26,  1909,  the  so-called  Declaration  of  London, 
which  codified  certain  branches  of  prize  law  in  such  a  way  that  the 
court,  instead  of  deciding  according  to  the  general  principles  of  justice 
and  equity,  as  authorized  by  Article  7  of  the  Convention,  would  be 
obliged  to  determine  the  controversy,  in  as  far  as  the  Declaration  of 
London  applied,  according  to  the  letter  and  spirit  of  the  principles  of 
law  authoritatively  laid  down  by  the  contracting  powers.  It  is  there- 
fore evident  that  the  legislative  action  of  the  court  can  be  controlled  by 
special  or  general  agreement,  even  although  the  decisions  of  the  court 
would,  in  interpreting  and  applying  recognized  principles,  develop  in- 
ternational law,  just  as  the  Supreme  Court  of  the  United  States  has 
by  its  decisions  interpreted  the  Constitution  of  the  United  States  in 
such  a  way  as  to  create  a  compact  and  adequate  body  of  law  for  the 
forty-eight  states  of  the  American  Union. 

There  is  another  question  which  should  be  discussed  in  this  connec-  The  relative 

/•        •  1  1-  authority  of 

tion,  as  it  may  be  the  cause  of  misunderstanding  if  not  clearly  under-   treatises  and 

jT-r  I'liA  A  •  precedents  in 

Stood.     It  IS  frequently  said  that  Anglo-American  courts  of  justice  Angio-Ameri- 

.,,...  '  can  and  in 

follow  judicial  precedents  and  regard  themselves  as  bound  by  them,  other  courts, 
whereas  courts  administering  other  systems  of  law  are  not  bound  by 
previous  decisions,  and  each  question  is  decided,  or  at  least  can  be 
decided,  when  and  as  it  arises,  without  reference  to  previous  judg- 
ments of  coordinate  courts,  or,  indeed  of  superior  tribunals.  It  is  also 
said  that  Anglo-American  courts  either  reject  or  consider  as  inferior 
to  adjudicated  cases  the  writings  of  the  learned,  whereas  foreign  courts 
regard  such  writings  as  sources  of  law,  and  as  binding  upon  them,  at 
least  to  a  certain  extent.  The  question  therefore  presents  itself :  if  an 
international  court  adopted  the  Anglo-American  method,  would  its  ac- 
tion be  acceptable  to  other  nations;  or  if,  on  the  contrary,  the  inter- 
national court  should  adopt  what  may  be  called  the  foreign  method, 
would  not  Great  Britain  and  the  United  States  object  to  this  method  of 
procedure?  The  subject  is  important,  but  the  difficulty  is  more 
specious  than  real,  as  the  following  observations  will,  it  is  hoped,  tend 
to  show. 

Admitting  for  the  moment  the  importance  of  the  question,  it  may 
be  said,  however,  that  the  matter  has  no  present  importance,  because 
precedents  of  mixed  commissions  and  of  temporary  tribunals  are  rarely 
cited  in  books  of  authority  or  regarded  as  binding  by  subsequent  com- 


6o  AN  INTERNATIONAL  COURT  OF  JUSTICE 

missions  or  tribunals.  They  may,  therefore,  be  excluded  from  con- 
sideration. In  the  next  place,  it  is  pretty  generally  admitted  that  the 
sources  of  international  law  are  custom,  as  evidenced  by  the  practice 
of  nations,  and  treaties  and  conventions.  Now^  custom  and  the  prac- 
tice of  nations  are  to  be  found  in  the  writings  of  the  learned,  in 
treatises  and  monographs  on  international  law.  Treaties  and  conven- 
tions bind  the  nations  contracting  them,  and  are  to  be  found  in  official 
publications.  It  appears,  therefore,  that,  for  the  present  at  least,  the 
international  tribunal  could  not  be  bound  by  decisions  of  mixed  com- 
missions and  of  temporary  tribunals,  for  these  do  not  have  authority, 
and  that  the  judges  of  the  proposed  court  would  of  necessity  have  to 
resort  to  treatises  on  international  law,  because  it  is  primarily  in 
treatises  that  the  practice  of  nations  is  to  be  found,  and  to  official  col- 
lections of  treaties  and  conventions,  in  so  far  as  treaties  and  conven- 
tions are  the  subject  of  dispute  or  enunciate  principles  of  law.  It  is 
believed,  therefore,  that  as  far  as  the  international  court  is  concerned, 
the  alleged  conflict  between  the  relative  value  of  treatises  and  of  de- 
cisions of  courts  is  academic.  But  it  is  proper  to  give  a  direct  answer 
to  the  questions  propounded.  This  will  be  done  in  the  language  of 
Professor  Wambaugh,  who  has  devoted  much  care  and  attention  to 
this  subject.    He  says : 

The  question  may  well  be  asked  whether  on  the  continent  of 
Europe,  and  in  other  countries  using  systems  descending  from  the 
Roman  law,  there  is  not  a  view  rejecting  decisions  as  creators  or 
even  demonstrators  of  law,  and  whether  in  consequence  it  must 
not  happen  that  the  decisions  of  international  courts  will  not  be 
recognized  as  authoritative  sources  of  legal  doctrine.  To  such  a 
question  two  answers  can  be  given.  One  is  that  in  the  nature  of 
things  the  force  of  judicial  decisions  must  be  great,  for  the  reasons 
already  pointed  out.  The  other  answer  is  that,  whatever  the  theory 
of  continental  and  other  jurists  may  be,  their  actual  practice  as 
to  this  matter  is  substantially  the  same  as  the  practice  of  the 
lawyers  of  England  and  America.  The  libraries  of  lawyers  in 
Roman  law  countries  are  crowded  with  reports  of  adjudged  cases, 
and  these  volumes  are  referred  to  by  lawyers  and  judges  there  in 
much  the  same  way  as  similar  volumes  are  used  in  England  and 
America.  It  is  of  little  practical  consequence  that  in  Roman  law 
countries  the  theory  is  that  each  case  is  decided  upon  the  basis 
of  the  court's  new  and  untrammeled  opinion  as  to  the  rights  of 
the  parties,  and  not  at  all  upon  the  basis  of  a  doctrine  that  the 
earlier  opinions  of  other  courts,  or  at  least  of  this  very  court, 
should  now  be  followed,  whereas  in  England  and  America  and 
other  common  law  countries  the  theory — briefly  called  stare  decisis 
— is  that  past  decisions  are  authoritative.    The  result  is  the  same. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  6i 

and  always  must  be  the  same,  namely,  that  the  reasoned  decisions 
of  skilled  courts  command  respect,  win  approval,  and  develop  law.^ 

There  are  certain  other  advantages  which  a  permanent  tribunal  pos- 
sesses over  the  temporary  variety,  but  although  important,  they  would 
not  of  themselves,  it  is  believed,  justify  the  creation  of  an  international 
court  were  other  and  weightier  reasons  lacking.  They  will  therefore 
be  but  briefly  mentioned. 

The  first  is  the  greater  dispatch  in  the  settlement  of  a  case  tried  Proceedings 
before  a  permanent  court,  because  the  judges  are  judges  by  profession,   court  shorter 
accustomed  to  the  details  and  intricacies  of  judicial  procedure  and  temporary 
familiar  with  the  conduct  of  cases.     The  procedure  is  thus  an  aid 
rather  than  a  hindrance,  and  enables  the  judges  to  reach  a  decision 
without  sacrificing  substance  to  form,  or  without  wasting  time  in  mas- 
tering the  details  of  procedure  with  which  they  are  either  familiar, 
or  which  their  training  enables  them  to  comprehend  and  control  with 
comparative  ease. 

In  the  next  place,  the  question  of  language  should  be  considered, 
because  it  needs  no  argument  that  judge  and  counsel  should  be  on 
speaking  terms. 

If  the  court  exists,  its  composition  is  known  in  advance,  as  are  also  Advantage 

1        1-  •      •  1-r  •  •  of  knowing 

the  Imguistic  qualifications  of  its  members.    The  litigants  can  thus  and  language  to  be 

.  -11  •  used  in  court. 

in  advance  of  the  cotnpromts  easily  determine  the  question  of  lan- 
guage, because  it  will  depend  in  no  slight  measure  upon  the  compo- 
sition of  the  court,  even  although  it  should  have  adopted  a  language 
or  languages  to  be  used  before  it.  The  amour  propre  of  the  litigants 
may  easily  be  saved  by  providing  that  their  agents  and  counsel  are  free 
to  use  their  respective  languages ;  but  if  those  languages  are  not  likely 
to  be  understood  by  the  court  as  a  whole,  it  is  evident  that  no  use  will 
be  made  of  this  privilege,  and  that  the  nations  will  select  agents  and 
counsel  familiar  with  the  language  believed  to  be  preferred  by  the 
court,  or  which  may  have  been  prescribed  by  it.  The  existence  of  a 
permanent  body  of  judges,  preferring  a  certain  language  or  languages, 
even  although  the  use  of  a  language  or  languages  be  not  made  a  rule 
of  court,  would  greatly  facilitate  the  submission  of  the  case,  because 
in  the  negotiations  preceding  the  submission,  nations  have  to  decide  the 
language  to  be  used  and  to  find  judges  who  understand  it.  This  diffi- 
culty would  be  overcome,  and  the  agreement  of  the  parties  thus  facil- 
itated.   In  this  connection  it  may  be  proper  to  add  that  if  it  be  under- 

^Proceedings   of   the   American   Society  for  Judicial   Settlement   of  Inter- 
national Disputes,  1910,  p.  144. 


62 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


Costs  of  pro- 
posed court 
borne  by 
contracting 
parties  and 
hence  small  for 
any  one  state. 


Summary  of 
advantages 
of  proposed 
court. 


Steps  taken 
by  Hague 
Peace  Con- 
ferences to 
create  per- 
manent court. 


Stood  that  one  particular  language  is  preferred  to  all  others,  and  that 
this  language  is  actually  used  in  the  trial  of  cases,  there  would  be  an 
inducement  to  lawyers,  hoping  to  practice  before  the  court,  to  familiar- 
ize themselves  with  that  language,  and  there  would  thus  be  indirectly 
an  incentive  to  the  creation  of  an  international  bar. 

Finally,  the  question  of  costs  should  be  considered,  for  one  of  the 
objections  to  the  present  system  is  not  merely  that  the  submission  of 
a  case  is  time-consuming;  that  the  composition  of  the  temporary  tribu- 
nal is  difficult  and  often  unsatisfactory,  as  tested  by  the  result,  but 
that  the  court  expenses  as  such  to  be  borne  by  the  litigating  nations 
in  equal  parts  are  often  so  considerable  as  to  deter  or  to  discourage 
them  from  resorting  to  arbitration.  The  traveling  expenses  of  the 
judges  and  honoraria  agreed  upon  between  the  parties  must  be  paid. 
These  sums  naturally  vary  with  the  circumstances  of  the  case,  and  it 
may  be  said  in  passing  that  the  exorbitant  honoraria  exacted  by  the 
arbiters  in  the  North  Atlantic  Fisheries  Arbitration  would  seem  to 
suggest  that,  however  desirable  arbitration  is  in  theory,  it  may  be  in 
practice  a  luxury  only  to  be  enjoyed  by  wealthy  nations.  In  the  case 
referred  to,  each  of  the  five  arbiters  received,  besides  his  traveling  and 
other  expenses,  the  sum  of  £3,000  sterling.  That  is  to  say,  each  arbiter 
received  for  some  three  months'  actual  service  at  The  Hague  more  than 
the  annual  salary  of  the  Chief  Justice  of  the  United  States.  In  case  of 
a  permanent  court  to  which  all  or  a  number  of  nations  are  parties,  the 
traveling  expenses,  the  salaries  of  the  judges,  and  all  other  outlays 
which  could  properly  be  called  court  expenses  would  be  borne  by  the 
contracting  states,  with  the  result  that  the  quota  to  be  paid  by  any 
one  state  would  be  modest,  and  the  amount  would  be  trifling  if  the 
number  of  contracting  states  were  large. 

In  a  word,  the  decision  of  a  case  by  a  permanent  court  composed 
of  professional  judges  would  be  judicial;  it  would  form  a  precedent 
and  tend  to  develop  international  law;  it  would  bind  not  merely  the 
individual  litigants,  but  all  nations  participating  in  its  creation;  it 
would  be  speedy ;  and,  last  but  not  least,  it  would  be  cheap;  and  justice 
to  be  popular  should  be  cheap. 

Let  us  now  pass  to  the  steps  taken  by  the  Hague  Conferences  to 
create  a  permanent  international  court. 

It  would  be  interesting  and  instructive  to  state  in  detail  the  projects 
which  have  been  proposed  from  time  to  time  to  establish  an  inter- 
national tribunal,  but  it  is  feared  that  such  information  would  be  ir- 
relevant to  the  present  purpose.  Suffice  it,  therefore,  to  say  that  the 
experience  had  with  arbitration  in  the  decades  following  the  Jay  treaty 


AN  INTERNATIONAL  COURT  OF  JUSTICE  63 

of  1794  suggested  the  usefulness  of  a  uniform  procedure  in  the  trial 
of  international  disputes,  and  the  desirability  of  some  kind  oi  an  in- 
ternational court,  in  which  the  nations  could  try  the  conflicts  of  a  legal 
nature  which  might  arise  between  and  among  them. 

The  Institute  of  International  Law,   organized  in   1873,   drafted  ^°o1fed°ure^'^'''*'^*' 
within    a   year    of    its    organization    a   code   of    arbitral    procedure,   st'itute'^o'7  inter- 
which,  subsequently  amended,  served  as  the  basis  of  discussion  on   national  Law. 
this  subject  at  the  First  Hague  Conference,  and  which,  with  sundry 
changes,  not  always  for  the  better,  was  adopted  by  that  august  assembly. 
The  Interparliamentary  Union,  created  by  the  wit  and  ingenuity  of  an 
English  workman,  the  late  Sir  Randal  Cremer,  whose  bust  was  for- 
mally unveiled  last  August  by  Mr.  Andrew  Carnegie  and  appropriately 
placed  in  the  Peace  Palace  at  The  Hague  upon  its  formal  opening, 
recognized  the  services  which  a  court  of  arbitration  could  render,  and, 
at  its  session  of  1894,  at  The  Hague — a  name  of  good  augury  in  mat- 
ters international — voted  the  following  resolutions : 

1.  National  sovereignty  remains  inalienable  and  inviolate;  Recommenda- 

A  J,  1.  ,     ^        ^1  X-  f  tion  of  Inter- 

2.  Adherence  by  any  government  to  the  creation  of  a  perma-  parliamentary 
nent  international  court  must  be  entirely  voluntary ;  ^erman°ent 

3.  All  adhering  states  must  be  on  a  footing  of  perfect  equality  court  at  the 
before  the  permanent  international  court ;  ^^"^  session. 

4.  The  decision  of  the  permanent  court  must  have  the  force 
of  decisions,  subject  to  execution.^ 

The  next  year,  at  the  Brussels  session,  a  project  based  upon  these 
resolutions  was  adopted  by  the  Interparliamentary  Union,  which  pro- 
ject, like  the  draft  of  the  Institute  of  International  Law  on  arbitral 
procedure,  served  as  the  basis  of  discussion  at  the  First  Hague  Peace 
Conference,  where  it  was  accepted  in  principle,  adopted  with  many 
modifications,  and  rendered  effective. 

The  First  Peace  Conference,  to  which  reference  has  just  been  made.   Action  of  First 

•■  _  Hague  Peace 

declared,  among  other  things,  that  the  object  of  international  arbitration  Conference. 
is  "  the  settlement  of  differences  between  states  by  judges  of  their  own 
choice,  and  on  the  basis  oJ_re^pect  for  law  "  ^  (Article  15)  ;  that  arbi- 

^1°  La  souverainete  nationale  demeure  inalienable  et  inviolable; 

2°  L'adhesion  de  tout  Gouvernement  a  la  constitution  d'une  Cour  permanente 
Internationale  est  purement  facultative ; 

3°  Tous  les  Etats  adherents  doivent  etre  sur  un  pied  de  parfaite  egalite 
devant  la  Cour  permanente  internationale ; 

4°  Les  jugements  de  la  Cour  permanente  doivent  avoir  la  force  d'une 
sentence  executoire.  Lange,  Union  interparletnentaire :  Resolutions  dcs  Con- 
ferences, etc.,  2d  ed.  191 1,  p.  50. 

'  L'arbitrage  international  a  pour  objet  le  reglement  de  litiges  entre  les  Etats 
par  des  juges  de  leur  choix  et  sur  la  base  du  respect  du  droit.     (Article  15) 


64 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


So-called  Per- 
manent Court 
of    Arbitration 
is  a  list  not 
a  court. 


tration  was  the  most  effective  and  at  the  same  time  the  most  equitable 
means  of  settling  disputes  of  a  legal  nature  or  involving  the  interpre-  "^ 
tation  or  application  of  international  conventions  which  diplomacy  had 
failed  to  adjust  (Article  i6)  ;  that  to  facilitate  the  immediate  recourse 
to  arbitration  in  differences  which  diplomacy  had  failed  to  settle,  a 
permanent  court  of  arbitration,  accessible  at  all  times,  should  be  estab- 
lished (Article  20)  ;  that  each  signatory  of  the  convention  should  select 
for  a  period  of  six  years  "  four  persons  at  the  most,  of  known  com- 
petency in  questions  of  international  law,  of  the  highest  moral  repu- 
tation, and  disposed  to  accept  the  duties  of  arbitrators  "  ^  (Article  23)  ; 
that  the  judges  to  form  a  temporary  or  special  tribunal  should  be 
chosen  from  the  list  of  competent  persons  appointed  by  the  signatory 
states  (Article  24)  ;  that  an  international  bureau,  under  the  supervi- 
sion of  the  Administrative  Council,  composed  of  the  diplomatic  repre- 
sentatives at  The  Hague,  should  be  established  as  a  record  office  for  the 
court  (Article  22)  ;  and  that  in  the  trial  of  a  case  the  procedure  drafted 
by  the  Conference  should  be  used,  unless  modified  by  the  litigating 
parties   (Article  20). 

The  nature  of  the  institution  thus  recommended,  which  was  later 
created  by  the  nations,  will  become  evident  from  a  comparatively  brief 
analysis  of  these  various  provisions.  No  permanent  tribunal  was  cre- 
ated. A  list  of  appropriate  persons  was  furnished  by  the  signatories, 
and  from  this  list  the  nations  were  recommended  to  select  the  members 
of  a  special  tribunal  to  try  a  particular  controversy.  The  judges  are,  in 
a  double  sense  of  the  word,  the  choice  of  the  parties,  because,  in  the  first 
place,  each  nation  possesses  the  right  to  appoint  not  more  than  four 
competent  persons  for  the  period  of  six  years,  and  the  individual 
litigants  possess  the  right  to  choose  from  this  list  the  per- 
sons whom  they  may  desire  to  have  pass  upon  the  controversy.  The 
method  of  selection  was  as  follows :  failing  a  direct  agreement  upon 
the  personnel  of  the  court,  each  nation  in  controversy  chose  two  per- 
sons from  the  list,  and  these  two  selected  the  umpire.  The  tribunal 
thus  created  came  into  being  for  the  trial  of  the  case,  and  with  its  de- 
termination, passed  out  of  existence,  after  having  settled  the  contro-  ' 
versy  "  on  the  basis  of  respect  for  law,"  according  to  the  wording  of 
Article  15.  But  it  is  evident  that  the  expression  "on  the  basis  of  re- 
spect for  law  "  is  not  necessarily  synonymous  with  the  application  of  the 


*  .  .  .  Quatre  personnes  au  plus,  d'une  competence  reconnue  dans  les  ques- 
tions de  droit  international,  jouissant  de  la  plus  haute  consideration  morale  et 
disposees  a  accepter  les  fonctions  d'arbitres.     (Article  23.) 


AN  INTERNATIONAL  COURT  OF  JUSTICE  65 

principles  of  law,  and  that  the  door  was  thus  open  to  compromise,  be- 
cause arbiters  may  respect  law  without  following  it. 

The  purpose  of  the  framers  of  this  important  convention  was  to  or- 
ganize a  permanent  court  of  arbitration  accessible  at  all  times.  At  the 
Second  Peace  Conference,  an  American  delegate  said : 

In  a  word,  the  Permanent  Court  is  not  permanent,  because  it  is 
not  composed  of  permanent  judges;  it  is  not  accessible,  because  it 
has  to  be  formed  for  each  individual  case ;  finally,  it  is  not  a  court, 
because  it  is  not  composed  of  judges.^ 

The  late  Mr.  Asser,  who  contributed  so  efifectively  to  the  establish- 
ment of  the  so-called  Permanent  Court  at  the  First  Conference,  said: 

Instead  of  a  Permanent  Court,  the  Convention  of  1899  ^^h  ^^^' 
ated  the  phantom  of  a  court,  an  impalpable  ghost,  or,  to  speak 
more  plainly,  it  created  a  clerk's  office  with  a  list.^ 

And,  finally,  Mr.  de  Martens,  who  had  likewise  championed  the  so- 
called  Permanent  Court  of  Arbitration  at  the  First  Conference,  felt 
justified  at  the  Second  in  asking  and  answering  the  following  question: 

What,  then,  is  this  court  whose  judges  do  not  even  know  each 
other?  The  Court  of  1899  is  only  an  idea  which  sometim.es  takes 
the  form  of  body  and  soul  and  then  disappears  again.^ 

It  is  not  denied  that  the  recognition  by  the  Conference  of  the  effi- 
cacy of  arbitration  was  a  great  and  important  event ;  that  the  creation 
of  machinery  from  which  a  temporary  tribunal  could  be  formed  was  a 
step  in  advance ;  and  that  the  drafting  of  a  code  of  procedure  was  of 
great  service  to  the  nation  because  in  times  of  tension,  nations,  like 
individuals,  are  not  in  the  frame  of  mind  to  agree  upon  rules  of  pro- 
cedure for  the  conduct  of  the  case  which  one  or  perhaps  both  of  them 
may  not  wish  to  try.     But  it  is  evident  that  the  most  that  the  First 

*  En  un  mot,  la  cour  permanente  n'est  pas  permanente,  puisqu'elle  n'est  pas 
composee  de  juges  permanents ;  elle  n'est  pas  accessible,  puisqu'elle  a  besoin 
d'etre  constituee  pour  chaque  cas  particulier ;  enfin  ce  n'est  pas  une  cour, 
puisqu'elle  n'est  pas  composee  de  juges.  Address  of  Mr.  Scott,  Deuxieme 
Conference  de  la  Paix,  1907,  Actes  et  documents,  vol.   ii,  p.  315. 

*  Au  lieu  d'une  Cour  permanente  la  Convention  de  1899  ne  donna  que  le 
fantome  d'une  Cour,  un  spectre  impalpable  ou  pour  parler  plus  nettement,  elle 
donna  un  grefife  avec  une  liste.     Ibid.,  p.  235. 

*  Quelle  est  done  cette  Cour  dont  les  membres  ne  se  connaissent  meme  pas? 
La  Cour  de  1899  n'est  qu'une  idee,  qui  quelquefois  prend  corps  et  ame,  et  puis 
disparait  de  nouveau.    Ibid.,  p.  322. 


^ 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


The  proposed 
court  is  not  a 
new  project 
but  a  recom- 
mendation of 
the  Second 
Hague  Peace 
Conference. 


Acceptance  of 
the  court  by 
Germany, 
Great  Britain, 
the  United 
States. 


Conference  did  towards  the  creation  of  a  permanent  court  was  to  pro- 
vide a  list  from  which  a  temporary  tribunal  could  be  constituted  and  to 
familiarize  the  world  with  the  idea  of  a  permanent  tribunal  by  calling 
the  panel  a  Permanent  Court  of  Arbitration. 

At  the  Second  Peace  Conference,  held  at  The  Hague  in  1907,  the 
American  delegation,  in  pursuance  of  instructions  from  Mr.  Root,  then 
Secretary  of  State  of  the  United  States,  proposed  the  establishment  of 
a  truly  permanent  court  composed  of  professional  judges.  Germany 
and  Great  Britain  joined  in  the  proposal,  and  although  not  technically 
a  party  to  the  project,  the  French  delegation  worked  loyally  for  its 
realization.  The  result  was  the  adoption,  after  weeks  of  discussion 
and  debate,  of  a  draft  convention  of  thirty-five  articles  dealing  with 
the  organization,  jurisdiction,  and  procedure  of  the  so-called  Court  of 
Arbitral  Justice,  and  a  recommendation  to  the  powers  to  secure  its  es- 
tablishment after  the  adjournment  of  the  Conference  through  diplo- 
matic channels.  That  is  to  say,  the  largest  and  most  representative 
of  diplomatic  conferences  approved  the  principle  of  a  permanent  court 
and  recommended  its  establishment  through  diplomatic  channels  by  the 
appointment  of  permanent  judges,  or  rather  of  judges  appointed  for 
a  period  of  twelve  years.  The  result  was  thus  a  very  great  triumph, 
but,  at  the  same  time,  it  was  not  complete,  because  the  Conference 
was  unable  to  hit  upon  a  method  of  appointing  the  judges,  some  fifteen 
in  number,  satisfactory  to  all  of  the  powers  represented  at  the  Con- 
ference. Various  methods  were  suggested,  but  none  was  found  gen- 
erally acceptable,  a  fact  due  to  the  difficulty  of  the  subject,  the  point  of 
approach,  and  the  lack  of  time,  because  the  Conference,  burdened  with 
many  matters,  was  in  session  only  four  months. 

The  powers  chiefly  concerned  in  the  introduction  of  the  proposal  for 
the  court  and  its  establishment  by  the  Conference  intimated,  both  then 
and  subsequently,  their  willingness  to  constitute  the  tribunal  diplomat- 
ically. For  example,  in  the  official  report  on  the  Second  Hague  Con- 
ference, issued  by  the  German  Government  shortly  after  the  adjourn- 
ment of  the  Conference,  Germany  stated  its  readiness  to  cooperate  in 
its  establishment  in  the  following  measured  language : 


Acceptance 
of  Germany. 


The  organization  of  such  an  arbitral  court  was  proposed  at  the 
Conference  by  the  United  States  of  America.  The  proposal 
sought,  as  far  as  possible,  to  facilitate  arbitration,  and  for  that 
purpose  to  create  a  permanent  universal  court  of  justice  com- 
posed in  a  definite  manner,  which  should  meet  each  year  at  The 
Hague,  in  order  to  decide,  free  of  cost,  all  controversies  submitted 
to  it  by  the  contracting  powers.     Such  an  organization  appeared 


AN  INTERNATIONAL  COURT  OF  JUSTICE  67 

to  be  a  thoroughly  appropriate  step,  which  met  also  the  purposes 
which  Germany  sought  to  attain.  The  German  delegation  there- 
fore earnestly  supported  the  proposal,  and  in  cooperation  with  the 
American  and  British  delegation  drafted  and  submitted  an  adequate 
proposition  to  the  Conference.  The  proposal  did  not,  however, 
lead  to  the  conclusion  of  a  treaty  for  the  reason  that  the  members 
of  the  Conference  could  not  agree  upon  the  manner  of  composing 
the  court  of  justice.  But,  in  accordance  with  the  first  voeu  con- 
tained in  the  Final  Act,  the  Conference  recommended  the  powers 
to  accept  the  draft  based  upon  the  proposal  referred  to,  as  soon 
as  an  agreement  could  be  reached  in  regard  to  an  appropriate 
composition  of  the  court.  Germany  stands  ready  to  cooperate  in 
the  establishment  of  the  court.^ 

After  a  sympathetic  account  of  the  proposed  court,  of  the  services  ^^^Y^lnct^ 
it  would  render,  and  of  the  proceedings  of  the  Conference  in  regard 
to  it,  and  expressing  the  hope  that  the  court  would  be  shortly  estab- 
lished, the  French  delegation,  in  its  official  report,  insists  upon  the  duty 
of  the  various  states  to  carry  to  completion  the  work  begun  at  The 
Hague.    Thus : 

Each  of  the  states  must  exert  special  efforts  to  carry  out,  as  far 
as  possible,  the  voeux,  resolutions  or  recommendations,  by  which 
the  Conference,  in  matters  upon  which  it  could  not  reach  a  conclu- 
sion, has  emphatically  signified  its  desire  to  see  the  governments 
complete  its  work.  It  will  suffice  to  refer  to  the  negotiations  requi- 
site to  give  definitive  form  to  the  permanent  Court  of  Arbitral 
Justice,  whose  operation  depends  upon  an  agreement  regarding  the 
manner  of  selecting  the  judges.^ 

*  Die  Errichtung  eines  solchen  Schiedsgerichtshofs  war  von  den  Vereinigten 
Staaten  von  Amerika  auf  der  Konferenz  angeregt  worden.  Die  Anregung 
bezweckte  die  moglichste  Erleichterung  der  Schiedssprechung,  indem  ein  stan- 
diger,  in  bestimmter  Weise  zusammengesetzter  Weltgerichtshof  jahrlich  im 
Haag  zusammentreten  sollte  um  alle  ihm  von  den  Vertragsmachten  unter- 
breiteten  Streitigkeiten  kostenlos  zu  entscheiden.  Eine  solche  Einrichtung 
erschien  als  ein  durchaus  zweckmassiger  Schritt,  der  auch  den  von  Deutschland 
angestrebten  Zielen  entsprach.  Die  Deutsche  Delegation  hat  daher  diese  Anre- 
gung lebhaft  unterstiitzt  und  eine  entsprechende  Vorlage  gemeinsam  mit  der 
Amerikanischen  und  der  Britischen  Delegation  ausgearbeitet  und  eingebracht. 
Zum  Abschluss  eines  Vertrages  hat  die  Vorlage  auf  der  Konferenz  nicht  gefiihrt, 
weil  man  sich  dort  iiber  die  Zusammensetzung  des  Gerichtshofs  nicht  einigen 
konnte.  Die  Konferenz  hat  aber  mit  dem  in  der  Schlussakte  von  ihr  geausserten 
ersten  Wunsche  den  Machten  empfohlen,  den  auf  der  erwahnten  Vorlage 
beruhenden  Entwurf  anzunehmen,  sobald  eine  Verstandigung  iiber  eine  geeignete 
Organisation  herbeigefiihrt  sein  wiirde.  Deutschland  ist  gem  bereit,  seine 
Mitwirkung  hierzu  eintreten  zu  lassen.  Denkschrift  iiber  die  sweite  Interna- 
tionale Friedenskonferens,  p.  3. 

"  Chacun  d'eux  doit  veiller  a  ce  qu'une  suite  soit  donnee,  dans  la  mesure 
possible,  aux  vceux,  resolutions  ou  recommandations,  par  lesquels  la  Conference, 
la  ou  elle  ne  pouvait  conclure  elle-meme,  a  marque  nettement  son  desir  de  voir 
les  gouvernements  achever  son  oeuvre.     II  nous  suffira  de  citer  les  negociations 


68 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


Acceptance  of 
Great  Britain. 


Acceptance 
of  the 
United  States. 


The  official  report  of  the  British  delegation  voices  its  regret  that  the 
Arbitral  Court  was  not  constituted  at  The  Hague  and  expresses  the 
hope  that  it  may  be  instituted.  "  We  can  not  but  hope,"  it  is  said,  "  that 
the  difficulties  which  we  have  been  unable  to  overcome  may  in  the  end 
be  surmounted,  and  that  our  labor  as  pioneers  may  in  the  end  not  prove 
entirely  fruitless."  ^ 

For  the  sake  of  completeness  rather  than  for  any  doubt  as  to  the  at- 
titude of  the  United  States,  a  paragraph  is  quoted  from  the  official  re- 
port of  the  American  delegation.  After  briefly  explaining  the  nature 
and  importance  of  the  proposed  court,  the  report  proceeds : 


It  is  evident  that  the  foundations  of  a  permanent  court  have  been 
broadly  and  firmly  laid ;  that  the  organization,  jurisdiction,  and 
procedure  have  been  drafted  and  recommended  in  the  form  of  a 
code  which  the  powers  or  any  number  of  them  may  accept,  and 
by  agreeing  upon  the  appointment  of  judges,  call  into  being  a 
court  at  once  permanent  and  international.  A  little  time,  a  little 
patience,  and  the  great  work  is  accomplished.^ 

In  his  annual  message  to  Congress,  following  the  adjournment  of 
the  Conference,  Mr.  Roosevelt,  then  President  of  the  United  States, 
said: 


Purpose  of  this 
memorandum 
is  to  urge 
establishment 
of  court  for 
limited    number 
of  powers. 


Substantial  progress  was  also  made  towards  the  creation  of  a 
permanent  judicial  tribunal  for  the  determination  of  international 
causes.  There  was  very  full  discussion  of  the  proposal  for  such 
a  court  and  a  general  agreement  was  finally  reached  in  favor  of 
its  creation.  The  Conference  recommended  to  the  signatory  Pow- 
ers the  adoption  of  a  draft  upon  which  it  agreed  for  the  organiza- 
tion of  the  court,  leaving  to  be  determined  only  the  method  by 
which  the  judges  should  be  selected.  This  remaining  unsettled 
question  is  plainly  one  which  time  and  good  temper  will  solve. ^ 

It  is  not  the  purpose  of  the  present  memorandum  to  discuss  the  draft 
convention  in  detail,  because  it  was  adopted  by  the  Conference,  and  is 
included  in  the  official  report  of  its  proceedings  issued  by  the  Nether- 
land  Government.     Nor  is  it  thought  advisable  in  this  connection  to 

necessaires  pour  donner  definitivement  I'existence  a  la  Cour  de  Justice  arbitrale 
permanente,  dont  le  fonctionnement  est  subordonne  a  une  entente  sur  le  chcix 
des  juges.  Ministere  des  Affaires  etrangeres.  Documents  diploniatiq;,es. 
Deuxieme  Conference  internationale  de  la  Paix,  1907,  Paris,  Impritnerie 
Nationale,  p.  116. 

'  Correspondence  respecting  the  Second  Peace  Conference  held  at  The  Hague 
in  1907,  p.  20. 

2  Foreign  Relations  of  the  United  States,  1907,  pt.  2,  p.  1178. 

*  Ibid.,  pt.  I,  p.  Ixiii. 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


69 


enumerate  the  different  methods  proposed  for  the  appointment  of 
judges.  The  purpose  of  this  memorandum  is  not  to  advocate  the  es- 
tablishment of  the  Court  of  Arbitral  Justice  for  all  nations,  but  for  a 
limited  number  of  nations  that  may  care  to  constitute  it.  It  is,  however, 
proper  to  make  some  observations  of  a  general  nature  to  show  why 
the  court  was  not  established. 

One  reason  for  the  failure  of  the  Conference  to  agree  upon  a  satis- 
factory method  of  appointing  the  judges  was  that  the  question  of  es- 
tablishing the  court  was  not  discussed  in  advance  of  its  meeting;  that 
the  project  presented  in  the  first  instance  by  the  United  States  was  one 
with  which  the  delegates  of  other  countries  were  not  familiar,  and  about 
which  they  had  no  instructions ;  and  delegates  to  a  diplomatic  confer- 
ence act  only  upon  instructions  from  their  home  governments.  Another 
reason  which  has  been  suggested  was  the  difficulty  of  the  subject.  It 
was  also  a  mathematical  difficulty.  If  each  nation  could  have  appointed 
a  judge,  the  matter  would  have  been  simple ;  but  we  would  then  have 
had  a  judicial  assembly  of  forty-four  members,  not  a  court  of  a  re- 
stricted number  of  judges.  Perhaps  it  would  have  been  possible  to 
reach  an  agreement,  if  the  nations  as  such  were  not  to  have  been 
represented  in  the  tribunal ;  that  is  to  say,  if,  instead  of  representing 
the  nations,  it  had  been  proposed  in  the  beginning  to  select  some  fifteen 
persons  possessing  the  confidence  of  the  society  of  nations  and  appoint- 
ing them  judges  for  a  period  of  years  to  be  determined  upon.  Be  this 
as  it  may,  the  fact  is  that  no  generally  acceptable  method  was  proposed ; 
the  judges  were  not  appointed,  and  the  establishment  of  the  court 
remains  the  hope  of  the  future. 

It  is,  however,  possible  for  any  number  of  nations  to  agree  through 
diplomatic  channels  to  establish  the  court  for  themselves,  in  accordance 
with  the  language  of  the  Final  Act : 

The  Conference  recommends  to  the  signatory  powers  the  adop- 
tion of  the  annexed  Draft  Convention  for  the  establishment  of  a 
Court  of  Arbitral  Justice,  and  the  bringing  it  into  force  as  soon 
as  an  accord  shall  be  reached  upon  the  choice  of  the  judges  and 
the  constitution  of  the  court.^ 


Reasons  why 
court  was  not 
created  by 
Second 
Hague  Peace 
Conference. 


Recommenda- 
tion of 
Conference. 


This  language  was  not  accidental :  it  was  chosen  in  the  belief  that 
some  nations — it  was  hoped  that  many,  if  not  all — might  be  willing  to 
constitute  the  court  through  diplomatic  channels ;  and  since  the  ad- 

1  La  Conference  recommande  aux  Puissances  signataires  I'adoption  du 
projet  ci-annexe  de  Convention  pour  retablissement  d'une  Cour  de  Justice 
arbitrale,  et  sa  mise  en  vigueur  des  qu'un  accord  sera  intervenu  sur  le  choix  des 
juges  et  la  constitution  de  la  Cour. 


Efforts    of 
United  States 
to  secure  es- 
tablishment 
of  court. 


70  AN  INTERNATIONAL  COURT  OF  JUSTICE 

journment  of  the  Conference  more  than  one  attempt  has  been  made  by 
the  United  States  to  estabHsh  the  court.  Thus,  on  February  6,  1909, 
Mr.  Robert  Bacon,  then  Secretary  of  State  of  the  United  States,  in- 
structed the  American  delegation  to  the  London  Naval  Conference  to 
propose  that  the  Prize  Court  should  be  invested  with  the  jurisdiction  of 
the  Court  of  Arbitral  Justice,  and  that,  in  this  capacity,  it  should  act 
in  accordance  with  the  Draft  Convention  of  the  Arbitral  Court.  As 
this  was  the  first  attempt  made  by  the  United  States  to  secure  the  estab- 
lishment of  the  proposed  court,  the  material  portion  of  Mr.  Bacon's 
instructions  is  quoted : 

Bacon'Y^  ^^  Order  to  confer  upon  the  Prize  Court  the  functions  of  an 

proposals.  arbitral  court  contemplated  in  the  first  recommendation  of  the 

Final  Act  of  the  Second  Conference,  the  Department  proposes  the 

following  article  additional  to  the  draft  protocol  concerning  the 

Prize  Court : 

And  any  signatory  of  the  Convention  for  the  establishment  of 
the  Prize  Court  may  provide  further  in  the  act  or  ratification 
thereof  that  the  International  Court  of  Prize  shall  be  competent 
to  accept  jurisdiction  of  and  decide  any  case,  arising  between  the 
signatories  of  this  proposed  article,  submitted  to  it  for  arbitration, 
and  the  International  Prize  Court  shall  thereupon  accept  jurisdic- 
tion and  adopt  for  its  consideration  and  decision  of  the  case  the 
Draft  Convention  for  the  establishment  of  a  Court  of  Arbitral 
Justice  adopted  by  the  Second  Hague  Conference,  the  establish- 
ment of  which  was  recommended  by  the  powers  through  diplo- 
matic channels. 

Any  signatory  of  the  Convention  for  the  establishment  of  the 
International  Court  of  Prize  may  include  in  its  ratification  thereof 
the  proposed  article  and  become  entitled  to  the  benefits  thereof. 

Mr.  Bacon  hoped  that  the  powers  participating  in  the  Naval  Con- 
ference, namely,  Germany,  the  United  States,  Austria-Hungary, 
Spain,  France,  Great  Britain,  Italy,  Japan,  the  Netherlands  and  Rus- 
sia, might  be  willing  to  enlarge  the  functions  of  the  Prize  Court  in  the 
way  suggested,  and  thus  at  one  and  the  same  time  secure  the  establish- 
ment of  both  tribunals. 

The  Conference,  however,  felt  that  the  proposal  to  modify  the  Prize 
Court  by  conferring  upon  it  the  jurisdiction  of  the  Court  of  Arbitral 
Justice,  exceeded  its  powers.  It  therefore  took  no  action  upon  the 
proposal  to  invest  the  Prize  Court  with  the  nature  and  functions  of  a 
Court  of  Arbitral  Justice. 

Deeming  it  possible  to  enlarge  the  functions  of  the  Prize  Court  by 
engrafting  upon  it  the  jurisdiction  of  a  Court  of  Arbitral  Justice,  and 


AN  INTERNATIONAL  COURT  OF  JUSTICE  71 

acting  in  accordance  with  the  letter  and  spirit  of  the  recommendation 
of  the  Second  Conference  to  constitute  the  Arbitral  Court  through  dip- 
lomatic channels,  Mr.  Bacon,  on  March  5,  1909,  sent  a  cable  to  Am- 
bassador Reid  informing  him  that  the  Department  would  shortly  ad- 
dress a  note  to  the  powers  on  the  subject,  and  directing  him  at  the 
same  time  to  communicate  its  substance  to  the  American  ambas- 
sador or  minister  of  each  of  the  powers  represented  at  the  London 
Naval  Conference.  As  this  act  of  Mr.  Bacon  was  the  second  attempt 
of  the  United  States  to  constitute  the  Court  of  Arbitral  Justice,  the 
material  portion  of  this  important  cable  is  quoted : 

You  will  again  convey  to  Sir  Edward  Grey  this  Government's 
high  appreciation  of  his  attitude  toward  investing  the  Prize  Court 
with  jurisdiction  of  Court  of  Arbitral  Justice,  as  well  as  of  his 
cooperation  by  means  of  which  the  Conference  adopted  a  vceu  rec- 
ommending to  the  participating  powers  that  a  rehearing  de  novo  of 
a  cause  before  the  Prize  Court  be  permitted,  instead  of  subjecting 
national  decisions  to  review  on  appeal. 

You  will  inform  Sir  Edward  that  this  Government  will,  upon 
receipt  of  the  texts  of  the  Conference,  send  an  identic  circular 
note  to  each  of  the  participating  powers,  setting  forth  at  length 
the  reasons  which  influence  the  United  States  to  request  a  rehear- 
ing de  novo  of  a  question  involved  in  a  national  prize  decision,  and 
the  means  whereby  this  change  of  procedure  may  be  efifected 
without  interfering  with  the  rights  of  governments  or  individuals 
under  the  Prize  Court  Convention. 

The  note  will  also  show  the  advisability  of  investing  the  Prize 
Court  with  the  jurisdiction  and  functions  of  a  Court  of  Arbitral 
Justice  in  order  that  international  law  may  be  administered  and 
justice  done  in  peace  as  well  as  in  war  by  a  permanent  international 
tribunal ;  that  this  close  connection  between  the  two  courts  was 
contemplated  by  the  framers  of  the  Arbitral  Court  as  appears 
from  Article  16  of  the  draft  convention  by  virtue  of  which  the 
judges  of  the  Arbitral  Court  might  exercise  the  functions  of 
judges  in  the  Prize  Court.  The  failure  to  constitute  the  Arbitral 
Court,  although  the  method  of  appointing  judges  was  substantially 
the  same  for  both  courts,  renders  this  provision  ineffective,  but 
it  is  possible  to  carry  out  the  intent  of  the  proposers  in  this  and 
to  constitute  Arbitral  Court  by  investing  Prize  Court  with  func- 
tions of  Arbitral  Court  and  to  prescribe  the  Draft  Convention  of 
Arbitral  Court  as  code  of  procedure  when  so  acting. 

It  is  not  intention  of  this  Government  to  use  pressure  of  any 
kind  to  secure  acceptance  of  its  views,  but  the  United  States  feels 
that  the  constitution  of  the  Arbitral  Court  as  branch  or  chamber 
of  the  Prize  Court  for  nations  voluntarily  consenting  thereto  would 
not  only  enhance  the  dignity  of  the  Prize  Court,  but  by  creating 
permanent  court  of  arbitration  would  contribute  in  the  greatest 


-^2  AN  INTERNATIONAL  COURT  OF  JUSTICE 

possible  manner  to  the  cause  of  judicial  and  therefore  peaceable 
settlement  of  international  difficulties. 

Knox's'^  ^"  October  i8,   1909,  Mr.  Bacon's  successor,  Mr.   Philander  C. 

proposal.  Knox,  scut  an  identical  circular  note,  proposing,  in  accordance  with 

Mr.  Bacon's  cable,  to  invest  the  Prize  Court  with  the  functions  of  a 
Court  of  Arbitral  Justice. 

As  this  note  of  Secretary  Knox's  was  the  basis  of  subsequent 
discussion,  and  resulted  in  an  agreement  of  Germany,  France,  Great 
Britain,  and  the  United  States  to  adopt  the  method  of  the  prize  court 
in  appointing  the  judges  for  the  Court  of  Arbitral  Justice,  it  is  advisable 
to  quote  at  length  the  material  portions  of  the  note  relating  to  this 
subject.  After  relating  the  action  taken  by  the  Department  of  State 
upon  the  initiative  of  Secretary  Bacon,  Mr.  Knox  proceeded : 

A  careful  consideration  of  the  project  and  of  the  difficulties  pre- 
venting the  constitution  of  the  court,  owing  to  the  shortness  of 
time  at  the  disposal  of  the  Conference,  has  led  the  Government  of 
the  United  States  to  the  conclusion  that  it  is  necessary  in  the  in- 
terest of  arbitration  and  the  peaceful  settlement  of  international 
disputes  to  take  up  the  question  of  the  establishment  of  the  court 
as  recommended  by  the  recent  Conference  at  The  Hague  and  se- 
cure through  diplomatic  channels  its  institution. 

Mr.  Knox  then  stated  the  close  connection  between  the  Prize  Court 
and  the  Court  of  Arbitral  Justice,  and  after  quoting  Article  16  of  the 
Arbitral  Court  Convention,  providing  that  the  members  of  the  Arbitral 
Court  could  "  also  exercise  the  functions  of  judge  and  deputy  judge  in 
the  International  Prize  Court "  he  thus  continued : 

The  reason  which  existed  in  1907  and  led  to  the  formulation 
of  the  articles  still  continues.  It  has  therefore  occurred  to  the 
United  States  that  the  difficulty  in  the  way  of  reaching  an  agree- 
ment upon  the  composition  of  the  court  would  be  obviated  by  giv- 
ing practical  effect  to  Article  16  by  an  international  agreement 
by  virtue  of  which  the  judges  of  the  International  Prize  Court 
should  be  competent  to  sit  as  judges  of  the  Court  of  Arbitral 
Justice  for  such  nations  as  may  freely  consent  thereto,  and  that 
when  so  sitting  the  judges  of  the  International  Prize  Court  shall 
entertain  jurisdiction  of  any  case  of  arbitration  submitted  by  a 
signatory  for  their  determination  and  decide  the  same  in  accord- 
ance with  the  procedure  prescribed  in  the  draft  convention.  In 
proposing  to  invest  the  International  Prize  Court  with  the  juris- 
diction and  functions  of  the  proposed  Court  of  Arbitral  Justice  the 
United  States  is  actuated  by  the  desire  to  establish  a  court  of 
arbitration  permanently  in  session  at  The  Hague  for  the  peaceful 


AN  INTERNATIONAL  COURT  OF  JUSTICE  73 

solution  of  controversies  arising  in  time  of  peace  between  the 
nations  accepting  and  applying  in  their  foreign  relations  the 
principles  of  an  enlightened  and  progressive  international  law. 

Mr.  Knox  next  explained  the  advantages  of  enlarging  what  might 
be  called  an  existing  institution,  rather  than  attempting  to  create  a 
new  one,  and  that  it  was  in  the  present  instance  especially  desirable 
to  do  so,  inasmuch  as  the  American  proposal  would  not  require  any 
change  in  the  Prize  Court  Convention.     Thus,  Mr.  Knox  said : 

It  is  a  truism  that  it  is  easier  to  enlarge  the  jurisdiction  of  an 
existing  institution  than  to  call  a  new  one  into  being,  and  as  the 
judges  and  deputy  judges  of  the  International  Prize  Court  must 
be  thoroughly  versed  in  international  law  and  of  the  highest  moral 
reputation,  there  can  be  no  logical  or  inherent  objection  to  en- 
larging their  sphere  of  beneficent  influence  in  vesting  them  with 
the  quality  of  judges  of  the  proposed  Court  of  Arbitral  Justice. 

The  proposal  of  the  United  States  does  not  involve  the  modifica- 
tion either  of  the  letter  or  spirit  of  the  draft  convention,  nor  would 
it  require  a  change  in  wording  of  any  of  its  articles.  It  would, 
however,  secure  the  establishment  of  the  Court  of  Arbitral  Justice 
as  a  chamber  of  the  world's  first  international  judiciary  and  thus 
complete  through  diplomatic  channels  the  work  of  the  Second 
Hague  Conference  by  giving  full  effect  to  its  first  recommendation. 

Before  suggesting  the  draft  of  an  agreement  to  invest  the  Prize 
Court  with  the  jurisdiction  of  the  Court  of  Arbitral  Justice,  Mr.  Knox 
reminded  the  powers  that  it  was  usual  in  the  United  States  for  one 
and  the  same  judge  to  administer  different  kinds  of  law.  Thus,  he  said : 

In  proposing  this  solution  of  the  difficulty  the  United  States  is 
influenced  by  daily  practice  and  procedure  in  its  national  courts 
of  justice,  where  one  and  the  same  judge  administers  law  and 
equity,  admiralty  and  prize,  which,  under  its  system  of  procedure, 
are  different  systems  of  law. 

Having  thus  stated  the  reasons  which  led  the  Department  of  State 
to  take  up  the  question  of  establishing  the  Court  of  Arbitral  Justice, 
and  the  method  by  which  this  could,  in  his  opinion,  be  done,  Mr.  Knox, 
speaking  as  Secretary  of  State  of  the  United  States,  proposed : 

That  in  the  instrument  of  ratification  of  the  International  Prize 
Court  Convention,  signed  at  The  Hague,  October  18,  1907,  any  of 
its  signatories  consenting  to  invest  the  International  Prize  Court 
with  the  powers  of  a  Court  of  Arbitral  Justice  shall  signify  its 
assent  thereto  in  the  following  form : 


74 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


Proposals  of 
Germany, 
France, 
Great  Britain. 


Meeting  of 
commission  at 
Paris  and  The 
Hague  in    igio. 


Recommenda- 
tions of  the 
commission. 


Whereas,  It  is  highly  desirable  that  the  Court  of  Arbitral  Justice, 
approved  and  recommended  by  the  Second  Hague  Peace  Con- 
ference, be  established  through  diplomatic  channels  ;  and 

Whereas,  Investing  the  International  Prize  Court  with  the 
duties  and  functions  of  the  proposed  Court  of  Arbitral  Justice 
would  constitute  for  the  consenting  powers  the  said  Court  of 
Arbitral  Justice,  as  recommended  by  the  first  voeii  of  the  Final  Act 
of  the  said  Conference; 

Therefore,  The  Government  of  .  .  .  agrees  that  the  Interna- 
tional Court  of  Prize,  established  by  the  Convention  signed  at  The 
Hague,  October  i8,  1907,  and  the  judges  thereof,  shall  be  com- 
petent to  entertain  and  decide  any  case  of  arbitration  presented 
to  it  by  a  signatory  of  the  International  Court  of  Prize,  and  that 
when  sitting  as  a  Court  of  Arbitral  Justice  the  said  International 
Court  of  Prize  shall  conduct  its  proceedings  in  accordance  with 
the  Draft  Convention  for  the  establishment  of  a  Court  of  Arbitral 
Justice,  approved  and  recommended  by  the  Second  Hague  Peace 
Conference  on  October  18,  1907. 

In  their  replies  to  this  note,  Great  Britain,  Germany,  and  France 
proposed  a  meeting  of  representatives  at  Paris  to  modify  the  Prize 
Court  to  meet  certain  objections  suggested  by  the  United  States,  and 
to  consider  whether  the  Court  of  Arbitral  Justice  could  be  composed, 
for  a  limited  number  of  countries  that  might  wish  to  establish  it,  by 
appointing  the  judges  in  accordance  with  the  method  found  acceptable 
in  the  Prize  Court,  instead  of  investing  this  court  with  the  jurisdiction 
of  the  Arbitral  Court.  This  method  secured  a  judge  to  Germany,  the 
United  States,  Austria-Hungary,  France,  Great  Britain,  Italy,  Japan 
and  Russia,  during  the  life  of  the  Prize  Court  Convention,  and  gave 
the  other  signatories  of  the  convention  a  larger  or  smaller  representa- 
tion, conditioned  upon  their  commercial  interests.  The  United  States 
accepted  this  proposal,  and  a  commission  composed  of  Mr,  Kriege, 
representing  Germany,  the  undersigned,  representing  the  United  States, 
Mr.  Renault,  representing  France,  and  Mr.  Crowe,  representing  Great 
Britain,  met  at  Paris  in  March,  1910,  to  consider,  among  other  things, 
the  establishment  of  the  Court  of  Arbitral  Justice.  Without  going 
into  details,  it  may  be  said  that  the  method  of  appointing  the  judges 
of  the  Prize  Court  was  adopted  by  the  commission,  and  that  the  four 
powers  agreed  to  take  steps,  after  the  constitution  of  the  Prize  Court, 
for  the  establishment  of  the  Court  of  Arbitral  Justice,  provided  eighteen 
powers,  including  therein  the  four  powers  specified,  should  agree  to 
the  establishment  of  the  Court  of  Arbitral  Justice,  and  adopted  an 
additional  convention,  appended  hereto,  modifying  in  certain  particulars 
the  original  Convention  of  the  Court  of  Arbitral  Justice.    The  principle, 


AN  INTERNATIONAL  COURT  OF  JUSTICE  75 

therefore,  was  accepted  that  the  Court  of  Arbitral  Justice  could  be 
created  by  a  limited  number  of  powers.  The  failure  of  Great  Britain 
to  ratify  the  Prize  Court  Convention  blocks  the  way  to  the  establish- 
ment of  the  Court  of  Arbitral  Justice,  and  makes  the  additional  con- 
vention therefore  inoperative. 

It  was  recognized  by  the  representatives  of  the  four  powers  at  the 
Paris  Conference  of  1910,  that  the  formation  of  the  Court  of  Arbitral 
Justice  for  a  limited  number  of  powers  would  involve  some  slight 
changes  in  the  draft  convention  adopted  by  the  Second  Peace  Con- 
ference, and  the  representatives  suggested  such  changes.  (Appendix, 
No.  I,  p.  91.)  At  a  later  meeting  of  the  representatives  of  the  same 
powers,  held  at  The  Hague  in  July,  1910,  still  further  modifications 
were  made  and  accepted  by  their  respective  governments.  (Appendix, 
No.  2,  p.  94.)  The  present  proposal  to  constitute  the  court  for  nine 
powers  and  to  open  it,  upon  condition,  to  other  powers,  would  likewise 
require  some  modification  of  the  original  text,  and  a  draft  of  such  an 
agreement,  based  upon  the  agreement  of  the  four  powers  concluded 
at  Paris  and  at  The  Hague,  is  appended  to  this  memorandum.  (Appen- 
dix, No.  3,  p.  98.) 

If  it  is  thought  desirable  to  make  other  changes  than  those  strictly   Suggestion  of 

'^  .  °  ■^     undersigned 

necessary  to  put  the  original  draft  into  force,  and  to  constitute  the  regarding 

■^  °  ^  .  (unsdiction  of 

court  for  the  nine  contracting  powers,  the  undersigned  would  venture  proposed  court. 

the   suggestion   that   Article    19  of   the   draft   convention   should   be 

omitted. 

This  article  provides  In  its  first  paragraph  that  the  delegation  of 
the  court  may  frame  the  compromis  if  the  parties  agree  to  leave  this 
to  the  court.  There  can  be  no  valid  objection  to  this  provision,  but 
the  case  is  different  with  the  remaining  paragraphs  which  have  been 
the  subject  of  much  discussion  and  of  no  little  criticism.  They  are 
here  quoted  for  the  sake  of  clearness  and  completeness : 

It  [the  delegation]  is  equally  competent  to  do  so,  even  when  the 
request  is  only  made  by  one  of  the  parties  concerned,  if  all  at- 
tempts have  failed  to  reach  an  understanding  through  the  diplo- 
matic channel,  in  the  case  of — 

I,  A  dispute  covered  by  a  general  treaty  of  arbitration  con- 
cluded or  renewed  after  the  present  convention  has  come  into 
force,  providing  for  a  compromis  in  all  disputes,  and  not  either 
explicitly  or  implicitly  excluding  the  settlement  of  the  compromis 
from  the  competence  of  the  delegation.  Recourse  cannot,  how- 
ever, be  had  to  the  court  if  the  other  party  declares  that  in  its 
opinion  the  dispute  does  not  belong  to  the  category  of  questions 
to  be  submitted  to  compulsory  arbitration,  unless  the  treaty  of 


-jS  AN  INTERNATIONAL  COURT  OF  JUSTICE 

arbitration  confers  upon  the  arbitration  tribunal  the  power  of  de- 
ciding this  preliminary  question ; 

2.  A  dispute  arising  from  contract  debts  claimed  from  one 
power  by  another  power  as  due  to  its  nationals,  and  for  the  set- 
tlement of  which  the  offer  of  arbitration  has  been  accepted.  This 
arrangement  is  not  applicable  if  acceptance  is  subject  to  the  con- 
dition that  the  compromis  should  be  settled  in  some  other  way.^ 

This  article  in  its  entirety  might  properly  be  omitted  and  replaced 

by  a  provision  contained  in  the  original  American  proposal,  which, 

however,  was  not  formally  submitted  to  the  Conference,  but  which 

has  met  with  the  approval  of  many  competent  authorities,  notably, 

Professor  Nys'    Professor  Emcst  Nys,  who  thus  writes  of  it : 

approval  and  •'    -' 

statement  of  the 

proposal.  An  ingenious  proposal  was  submitted  to  various  members  of  the 

Second  Hague  Conference  regarding  the  jurisdiction  of  the  per- 
manent judicial  court  which  was  to  be  established.  According  to 
this  plan  the  court  shall  be  competent  to  receive,  consider  and  de- 
termine any  claims  or  petitions  from  a  sovereign  state  touching 
any  difference  of  an  international  character  with  another  sovereign 
state,  provided  that  such  difference  is  not  political  in  character  and 
does  not  involve  the  honor,  independence  and  vital  interests  of  any 
state.  It  shall  not  be  competent  concerning  any  petition  or  appli- 
cation from  any  person,  natural  or  artificial,  except  a  sovereign 
state.  It  shall  not  take  any  action  on  any  petition  or  application 
which  it  is  competent  to  receive,  unless  it  shall  be  of  the  opinion 
that  a  justiciable  case,  and  one  which  it  is  competent  to  entertain 
and  decide  and  worthy  of  its  consideration,  has  been  brought  be- 
fore it,  in  which  case  it  may  in  not  less  than  thirty  nor  more  than 
ninety  days  after  the  presentation  of  the  petition  invite  the  other 
sovereign  state  to  appear  and  submit  the  matter  to  judicial  deter- 
mination by  the  court.  It  follows  that  it  would  be  possible  for  a 
state  to  call  another  state  to  the  bar  and  thus  bring  about  a  judicial 
presentation  of  the  question.  It  is  true  that  one  danger  exists  which 

'  Elle  [la  Delegation]  est  egalement  competente,  meme  si  la  demande  est 
faite  seulement  par  I'une  des  parties,  apres  qu'un  accord  par  voie  diplomatique 
a  ete  vainement  essaye,  quand  il  s'agit : 

1°  D'un  differend  rentrant  dans  un  traite  d'arbitrage  general  conclu  ou 
renouvele  apres  la  mise  en  vigueur  de  cette  Convention  et  qui  prevoit  pour 
chaque  differend  un  compromis,  et  n'exclut  pour  I'etablissement  de  ce  dernier, 
ni  explicitement  ni  implicitement,  la  competence  de  la  delegation.  ^  Toutefois,  le 
recours  a  la  Cour  n'a  pas  lieu  si  I'autre  partie  declare  qu'a  son  avis  le  differend 
n'appartient  pas  a  la  categoric  des  questions  a  soumettre  a  un  arbitrage  obliga- 
toire,  a  moins  que  le  traite  d'arbitrage  ne  confere  au  tribunal  arbitral  le  pouvoir 
de  decider  cette  question  prealable ; 

2°  D'un  differend  provement  de  dettes  contractuelles  reclamees  a  une  Puis- 
sance par  une  autre  Puissance  comme  dues  a  ses  nationaux,  et  pour  la  solution 
duquel  I'offre  d'arbitrage  a  ete  acceptee.  Cette  disposition  n'est  pas  applicable 
si  I'acceptation  a  ete  subordonnee  a  la  condition  que  le  compromis  soit  etabli 
selon  un  autre  mode. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  77 

must  be  avoided :  that  of  wounding  the  pride  of  a  sovereign  state. 
However,  the  following  provision  obviates  the  difficulty:  should 
the  court  invite  a  state  to  appear  and  submit  the  matter  to  judicial 
determination,  the  state  so  invited  may  (a) refuse  to  submit  the 
matter;  (&)  refrain  from  submitting  the  matter  by  failing  for  a 
certain  number  of  days  to  make  any  response  to  the  invitation,  in 
which  event  it  shall  be  deemed  to  have  refused;  (c)  submit  the 
matter  in  whole,  or  (rf)  offer  to  submit  the  matter  in  part  or  in  dif- 
ferent form  from  that  stated  in  the  petition,  in  which  event  the 
petitioning  state  shall  be  free  either  to  accept  the  qualified  sub- 
mission or  to  withdraw  its  petition  or  application;  (^)  appear  for 
the  sole  purpose  of  denying  the  right  of  the  petitioning  state  to 
any  redress  or  relief ;  in  case  the  court  does  not  sustain  this,  it  shall 
renew  the  invitation  to  appear.  In  case  the  states  in  controversy 
can  not  agree  upon  the  form  and  scope  of  the  submission  of  the 
difference  referred  to  in  the  petition,  the  court  may  appoint,  upon 
the  request  of  either  party,  a  committee  of  three  from  the  Ad- 
ministrative Council,  and  this  committee  shall  frame  the  ques- 
tions to  be  submitted  and  the  scope  of  the  inquiry,  and  thereafter 
if  either  party  shall  withdraw,  it  shall  be  deemed  to  have  refused 
to  submit  the  matter  involved  to  judicial  determination.  If  such 
a  procedure  could  be  decided  upon,  all  the  difficulties  which  beset 
the  path  of  arbitration  would  be  overcome.  The  court  of  justice 
would  be  ready  to  hear  the  lawyers  and  representatives  of  the 
states,  parties  to  the  cause,  and  it  could  act  in  its  capacity  as  a 
judicial  tribunal  and  arbitration  would  be  superfluous.  There 
would  be  no  longer  necessity  for  general  arbitration  conventions, 
nor  special  compromis  concluded  with  regard  to  a  particular  dis- 
pute ;  all  states  would  be  in  the  presence  of  a  truly  international 
tribunal  and  in  the  position  of  the  citizen  of  a  civilized  country 
who,  having  an  injury  done  to  his  rights,  may  cite  him  whom  he 
accuses  to  have  been  the  author  of  the  wrong  to  meet  him  before 
established  tribunals.^ 

It  is  believed  that  the  nine  powers  might  be  willing  to  allow  them-  ^"""J^^^^, 
selves  to  be  invited  to — not  summoned  before — the  Court  of  Arbitral 
Justice  upon  the  initiative  of  one  of  the  contracting  powers,  provided 
it  was  distinctly  understood,  and  so  expressed  in  the  convention,  that 
the  invitation  might  be  refused,  at  the  option  of  the  power  in  question, 
without  entailing  any  obligation  on  the  part  of  such  power  to  submit 
the  dispute.  Such  a  provision  would,  as  Professor  Nys  properly  says, 
do  away  with  the  necessity  of  a  special  compromis  between  the  powers 
for  each  case  as  it  arises;  would  make  the  proposed  court  in  fact,  as 
wxll  as  in  form,  a  court  of  justice,  without,  however,  as  is  the  case  in 
national  courts,  compelling  the  disputant  to  appear  before  the  court 

^  Ernest  Nys,  Development  and  Formation  of  International  Law,  American 
Journal  of  International  Law,  vol.  6,  pp.  308-310. 


78 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


Suggestion 
that  proposed 
court  be 
established 
without 
reference  to 
Prize  Court. 


Public  opinion 
not  ripe  for 
court  in  1907. 


Public  opinion 
now  in  favor    of 
proposed  court. 


and  to  defend  the  case.  The  compulsion,  if  any,  would  be  moral,  not 
legal,  and  it  is  believed  that  the  nine  nations  mutually  respecting  one 
another,  and  having  confidence  in  the  motives  and  devotion  of  each 
to  the  cause  of  justice,  might  properly  agree  to  this  form  of  procedure 
in  cases  of  a  justiciable  character.  The  suggestion  is,  however,  not 
insisted  upon,  but  only  mentioned  as  showing  how  municipal  process 
may  be  varied  in  such  a  way  as  to  meet  international  needs,  without 
sacrificing  the  independence  and  sovereignty  of  nations. 

As  it  appears  improbable  that  the  Prize  Court  will  be  established 
in  the  very  near  future,  the  question  arises  whether  it  is  not  possible 
to  take  steps  for  the  establishment  of  the  Court  of  Arbitral  Justice  for 
such  powers  as  may  be  convinced  of  its  advantages,  and  which  may 
wish  to  participate  in  its  creation.  It  has  been  stated  that  only  one 
delegation  was  instructed  to  propose  a  permanent  court  to  the  Second 
Peace  Conference.  It  has  also  been  stated  that  Germany,  France,  and 
Great  Britain  cooperated  with  the  United  States,  and  that  it  was 
through  this  happy  cooperation  that  the  draft  convention  was  framed 
and  adopted  by  the  Conference.  It  is  evident  therefore  that  four 
powers  not  the  least  respected  in  the  society  of  nations  have  publicly, 
ofificially  and  unequivocally  professed  their  faith  in  the  feasibility  of 
establishing  the  Court  of  Arbitral  Justice.  The  same  powers  agreed, 
as  has  also  been  mentioned,  to  the  establishment  of  this  court  for  a 
limited  number  of  powers  at  a  meeting  of  their  representatives  at  Paris 
in  March,  and  at  The  Hague  in  June,  1910.  It  is  believed  that  these 
powers  are  now,  as  then,  willing  to  cooperate  to  this  end,  and  that  they 
would  agree  to  the  establishment  of  the  court  for  a  limited  number  of 
nations,  provided  a  method  of  constituting  it  should  be  proposed,  which 
would  grant  them  the  same  representation  in  it  which  they  would  have 
had  under  the  method  of  composition  employed  in  the  Prize  Court. 

One  reason  why  the  Arbitral  Court  was  not  established  at  the 
Second  Peace  Conference  was  that  the  idea  of  a  permanent  court 
composed  of  professional  judges,  selected  in  advance,  and  ready  for 
the  trial  of  any  and  every  case  that  might  be  submitted  was,  as  far 
as  the  nations  were  concerned,  a  new  project,  which  they  had  not 
heretofore  considered ;  and  the  failure  to  constitute  the  Prize  Court 
since  the  Conference  suggests  that  public  opinion  was  not  then  ripe 
for  the  proposal.  Since  the  adjournment  of  the  Conference,  however, 
great  attention  has  been  given  to  the  proposal  to  establish  a  truly 
permanent  court.  The  most  enlightened  publicists  of  many  nations 
have  declared  themselves  in  favor  of  the  court,  and  it  may  be  said 
that  public  opinion  is  not  merely  in  favor  of  it,  and  would  recommend 


AN  INTERNATIONAL  COURT  OF  JUSTICE  79 

its  creation,  but  that  a  positive  and  aggressive  sentiment  exists  in 
more  than  one  country  for  its  establishment. 

Instead  of  enumerating  leaders  of  thought  in  different  countries 
who  have  declared  themselves  in  favor  of  establishing  the  Court  of 
Arbitral  Justice,  it  will  perhaps  suffice  to  mention  the  significant  fact 
that  the  Institute  of  International  Law,  composed  of  distinguished 
publicists,  drawn  from  the  four  quarters  of  the  globe,  has  considered 
the  question  of  the  Court  of  Arbitral  Justice  in  its  various  aspects, 
and  that  the  Institute,  as  a  body,  in  a  public  session,  held  at  Christiania 
in  1912,  after  debate  and  discussion,  unanimously  adopted,  upon  motion 
of  Professor  Lammasch,  the  following  resolution: 

While  recognizing  the  great  value  of  the  Court  of  Arbitration, 
instituted  by  the  Peace  Conference  in  1899,  to  international  jus- 
tice and  the  maintenance  of  peace ; 

The  Institute  of  International  Law : 

In  order  to  facilitate  and  to  hasten  recourse  to  arbitration ;  to 
assure  the  settlement  of  differences  of  a  legal  nature  by  arbiters 
representing  the  different  systems  of  legislation  and  of  jurispru- 
dence ; 

In  order  to  reinforce  the  authority  of  the  tribunals  in  the  eyes 
of  the  representatives  of  the  parties  in  controversy  by  having  the 
members  of  the  tribunal  known  to  them  in  advance,  and  likewise 
to  increase  the  moral  force  of  the  decision  by  having  it  rendered 
by  a  larger  number  and  by  the  authority  of  arbiters  recognized  by 
the  totality  of  the  states ; 

In  order  to  resolve,  in  case  of  a  treaty  of  compulsory  arbitra- 
tion containing  a  clause  to  this  effect,  the  doubts  which  might 
arise  as  to  whether  or  not  a  particular  controversy  belongs  to  the 
category  of  questions  subject  to  compulsory  arbitration  under  the 
treaty ; 

In  order  to  create  a  court  of  appeals  for  decisions  rendered  by 
tribunals  constituted  otherwise  than  in  conformity  with  the  rules 
of  the  Hague  Convention,  in  case  the  special  compromis  should 
provide  for  the  possibility  of  such  a  revision ; 

Considers  it  highly  desirable  that  satisfaction  be  given  to  the 
first  voou  adopted  by  the  Second  Peace  Conference  in  favor  of  the 
establishment  of  a  Court  of  Arbitral  Justice.^ 

^  Tout  en  reconnaissant  les  grands  merites  de  la  Cour  d'arbitrage  instituee 
par  la  Conference  de  La  Haye  de  1899  pour  la  justice  internationale  et  le 
maintien  de  la  paix ; 

L'Institut  de  Droit  international : 

Dans  le  but  de  faciliter  et  de  hater  I'acces  a  I'arbitrage ;  d'assurer  le  reglement 
des  differents  d'une  nature  juridique  par  des  arbitres  representant  les  differents 
systemes  de  legislation  et  de  procedure ; 

Dans  le  but  de  renforcer  I'autorite  des  tribunaux  vis-a-vis  des  representants 
des  parties  en  litige,  par  le  fait  que  les  membres  des  tribunaux  leur  soient 
connus  d'avance,  et  d'accroitre  de  meme  la  force  morale  de  la  sentence  rendue 


8o  AN  INTERNATIONAL  COURT  OF  JUSTICE 

Netheri'and  ^^^  accomplishcd  Ncthcrland  Minister  to  the  United  States,  Mr. 

uihed^states*      Loudon,  in  a  public  address  delivered  before  the  American  Society 

»*»  '9'°-  for  Judicial  Settlement  of  International  Disputes,  held  in  Washington 

in  1910,  referred  "  to  the  great  American  proposal  to  establish  a 
regular  Court  of  Arbitral  Justice,  not  supplanting  the  existing  so-called 
Permanent  Court  of  Arbitration,  but  offering  in  addition  thereto 
almost  all  the  advantages  of  a  supreme  court  with  its  full  judicial 
equipment."  ^  And  he  ventured  the  prophecy  that  w^hen  the  Third 
Peace  Conference  met  at  The  Hague,  it  would,  in  all  probability,  find 
definitely  established  "  that  greatest  achievement  of  all,  a  permanent 
Court  of  Arbitral  Justice."  ^ 

Formation  of  Will  the  Third  Peace  Conference  find  the  Court  of  Arbitral  Justice 

court  before  ^  •' 

Third  Hague        installed  in  the  Peace  Palace  at  The  Hague  when  it  meets  in  the 

Peace  Con-  _  _    ° 

ference  depends  course  of  the  next  fcw  ycars  ?     This  is,  in  the  opinion  of  the  under- 

on  action  of  _  f  ^  _ 

Netheriand  signed,   largely  a   question   for  the  present   enlightened   Minister  of 

Foreign  Affairs.  Foreign  Affairs  of  the  Netherlands  to  decide;  and  if  he  takes  the 
initiative,  as  it  is  believed  he  properly  can,  and  which  the  undersigned 
is  convinced  that  he  is  willing  to  do,  the  Minister  of  the  Netherlands 
to  the  United  States  will,  as  Minister  of  Foreign  Affairs  of  the  Nether- 
lands, set  in  motion  the  machinery,  through  diplomatic  channels,  as 
provided  by  the  Second  Peace  Conference,  for  the  establishment  of 
the  Court  of  Arbitral  Justice.  It  may  be  taken  for  granted  that,  for 
the  present  at  least,  it  is  unwise  to  attempt  to  establish  the  Court  of 
Arbitral  Justice  by  all  the  nations,  forty-four  in  number,  represented 
at  the  Second  Conference.  But  the  proposers  of  the  court  believed 
that  it  could  properly  be  established  by  a  lesser  number,  and  the 
representatives  of  the  four  powers  entered  into  a  formal  agreement 
for  the  establishment  of  the  court  by  a  limited  number,  and  their 
action  was  subsequently  confirmed  by  their  respective  governments. 

par  le  nombre  plus  grand  et  par  I'autorite  des  arbitres  reconnus  par  la  totalite 
des  Etats ; 

Dans  le  but  de  faire  trancher,  dans  le  cas  d'un  traite  d'arbitrage  obligatoire 
contenant  une  clause  a  cet  effet,  les  doutes  pouvant  s'elever  sur  le  point  de 
savoir  si  un  differend  determine  rcntre  dans  la  categoric  de  ceux  qui  sont  soumis 
par  ce  traite  a  I'arbitrage  obligatoire ; 

Dans  le  but  de  creer  un  tribunal  de  revision  des  sentences  des  tribunaux 
institues  en  dehors  des  dispositions  de  la  convention  de  La  Have,  pour  le  cas 
oil  le  compromis  special  viendrait  a  prevoir  la  possibilite  de  cette  revision ; 

Estime  hautement  desirable  que  satisfaction  soit  donnee  au  voeu  n°  i  emis 
par  la  deuxieme  Conference  de  la  Paix  en  faveur  de  I'etablissement  d'une  Cour 
de  Justice  arbitrale.  Annuaire  de  I'Institut  de  droit  international,  1912,  pp. 
603-604. 

'  Proceedings  of  the  American  Society  for  Judicial  Settlement  of  Inter- 
national Disputes,  1910,  p.  193. 

'  Ibid.,  p.  194. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  8i 

In  addition  thereto,  Austria-Hungary,  Italy,  and  Japan  expressed  Austria- 
their  willingness,  in  their  replies  to  Secretary  Knox's  circular  note,   itaiyand' 
to  cooperate  in  the  establishment  of  a  Court  of  Arbitral  Justice  as  a  apparently 

,.  ,  1       1       f  •       •  i         •      1  willing  to 

separate  institution,  according  to  the  method  of  appointing  the  judges  cooperate. 
for  the  Prize  Court. 

It  is  believed  that  these  powers  are  still  willing  to  cooperate,  and 
we  thus  have  seven  nations  which  have  committed  themselves,  not 
merely  in  favor  of  the  court,  but  in  favor  of  its  establishment,  provided 
they  were  assured  representation  in  it  at  least  equal  to  that  which 
they  would  have  in  the  Prize  Court.  The  agreement  reached  in  Paris 
and  The  Hague  by  the  representatives  of  the  four  governments,  was 
officially  communicated  to  the  Minister  of  Foreign  Affairs  of  the 
Netherlands,  with  the  request  that  upon  the  formation  of  the  Prize 
Court,  he  should  at  the  request  of  the  United  States  address  a  note, 
in  which  the  three  powers  would  join,  to  the  signatories  of  the  Prize 
Court,  requesting  them  to  cooperate  in  the  establishment  of  the  Court 
of  Arbitral  Justice.  The  Netherland  Minister  of  Foreign  Affairs 
approved  the  action  of  the  four  powers,  and  stated  his  willingness  to 
address  the  signatories  upon  the  request  of  the  United  States.  It 
appears,  therefore,  that  eight  powers  approve  the  proposal  to  create 
a  Court  of  Arbitral  Justice. 

It  should  be  borne  in  mind,  however,  that  the  ninth  power,  Russia,  Probabie 
voted  for  the  establishment  of  the  court  through  diplomatic  channels,  of  Russia, 
and  the  official  record  of  the  Conference  shows  the  very  great  and 
deep  interest  which  the  first  Russian  delegate — not  to  speak  of  Mr. 
de  Martens — took  in  the  project ;  and  in  the  final  result  the  unfailing 
intervention  of  this  first  delegate,  Mr.  Nelidow,  who  was  also  president 
of  the  Conference,  counted  for  much,  Russia  was  then,  and  appears 
to  be  still  unwilling  to  establish  the  Prize  Court,  probably  because  it 
felt  that  an  attempt  would  be  made  to  submit  to  the  Prize  Court  when 
established  the  Russian  decision  of  prize  cases  arising  out  of  the 
Russo-Japanese  war.  If  this  be  so,  Russia  would  probably  object  to 
any  proposition  investing  the  Prize  Court  with  the  functions  of  the 
Court  of  Arbitral  Justice,  because  such  action  would  be  and  is  de- 
pendent upon  the  establishment  of  the  Prize  Court  to  which  Russia 
has  not  agreed.  But  it  does  not  follow  that  Russia  would  refuse  to 
participate  in  the  creation  of  the  Court  of  Arbitral  Justice  as  a  separate 
institution,  if  its  representation  in  it  were  that  of  the  other  powers 
which  have  already  agreed.  That  is  to  say,  it  seems  possible  that  each 
of  the  eight  powers  which  were  to  be  permanently  represented  by  a 
judge  of  their  own  choice  in  the  Prize  Court,  would  be  willing  to 


82 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


Reasons  for 
and  against 
formation  of 
proposed    court 
for  limited 
number 
of  nations. 


agree  to  the  establishment  of  the  Court  of  Arbitral  Justice  if  each 
were  to  have  a  judge  of  its  own  choice  in  this  institution;  and,  if 
Holland,  as  the  host  of  the  court,  be  added,  there  would  be  nine 
countries  willing  to  establish  the  court  for  the  decision  of  such  ques- 
tions as  they  might  care  to  submit  to  it.  The  court  itself  would  thus 
be  composed  of  nine  judges,  just  as  the  Supreme  Court  of  the  United 
States  is  composed  of  nine  judges. 

As  there  may  be  some  objection  to  constituting  the  Court  of 
Arbitral  Justice,  which  was  only  a  recommendation  of  the  Conference, 
before  the  Prize  Court  which  was  a  solemn  convention,  and  as  there 
may  perhaps  be  some  hesitation  in  establishing  the  proposed  court 
by  a  limited  number  of  powers,  and,  finally,  as  there  may  be  a  feeling 
that  its  creation  before  the  Third  Peace  Conference  might  somehow 
prejudice  the  institution  of  a  larger  tribunal  by  the  Conference,  the 
undersigned  submits  some  general  observations  on  these  ques- 
tions. 

The  Court  of  Arbitral  Justice  was  subordinated  to  the  creation  of 
the  Prize  Court,  in  order  that  the  establishment  of  the  latter  court 
should  not  be  injuriously  affected  by  negotiations  for  the  institution 
of  the  Court  of  Arbitral  Justice.  Another  reason  was  that,  inasmuch 
as  the  four  powers  agreed  to  recommend  to  the  nations  at  large  the 
composition  of  the  Court  of  Arbitral  Justice  according  to  the  method 
adopted  by  Article  15  of  the  Prize  Court  Convention,  it  was  highly 
desirable  to  postpone  the  negotiations  relating  to  the  Arbitral  Court 
until  the  Prize  Court  had  been  instituted,  in  order  to  utilize  the  method 
of  an  existing  court.  As,  however,  the  Prize  Court  Convention  had 
not  been  ratified,  and  inasmuch  as  it  can  not  be  predicted  when  the  Prize 
Court  Convention  will  be  approved  by  the  number  of  powers  required 
to  put  it  into  effect,  it  would  appear  that  the  reason  for  the  delay  has 
ceased  to  exist.     Cessante  ratione  legis  cessat  et  ipsa  lex. 

In  the  judgment  of  the  undersigned  these  circumstances  raise  a 
presumption  amounting  to  a  conviction  that  the  time  has  come  to 
consider  (i)  whether  the  Governments  of  Germany,  the  United 
States,  France  and  Great  Britain,  parties,  as  has  been  seen,  to  the 
draft  conventions  of  March  and  July,  1910,  to  establish  the  Arbitral 
Court  for  a  limited  number  of  powers,  and  (2),  whether  the  Govern- 
ments of  Austria-Hungary,  Italy,  Japan  and  Russia,  with  Holland 
as  the  host  of  the  court,  would  be  willing  to  compose  it  for  themselves, 
on  the  distinct  understanding  that  the  court,  when  constituted,  would 
be  temporary  in  its  nature,  in  the  sense  that  the  establishment  of  a 
larger  and  more  general  tribunal  should  be  considered  at  the  next 


AN  INTERNATIONAL  COURT  OF  JUSTICE  83 

Peace  Conference  at  The  Hague,  and  that  no  attempt  should  be  made 
to  persuade  those  powers  which  may  be  opposed  to  its  institution  to 
participate  in  its  creation  or  operation.  Supposing  that  the  powers 
entitled  to  a  judge  under  Article  15  of  the  Prize  Court  Convention 
should  desire  or  be  willing  to  constitute  the  Arbitral  Court,  it  does 
not  seem  reasonable  that  the  powers  that  do  not  wish  to  cooperate 
in  its  establishment  should  prevent  the  powers  really  desiring  it  from 
calling  it  into  being.  Respect  for  the  powers  that  oppose  the  estab- 
lishment of  the  court  by  means  of  Article  15  of  the  Prize  Court 
Convention,  can  not  reasonably  mean  that  the  powers  desiring  to 
form  the  Court  of  Arbitral  Justice  for  themselves  are  not  at  liberty 
to  negotiate  an  agreement  for  this  purpose.  The  only  circumstance 
which  it  is  conceived  should  militate  against  the  creation  of  the  court 
by  the  nine  powers  is  that  its  institution  might  tend  to  prevent  the 
establishment  of  a  more  general  court,  and  thus  retard  the  cause  of 
judicial  settlement.  But  it  is  difficult  to  see  how  the  creation  of  the 
court  by  a  limited  number  of  powers,  to  be  used  by  them  for  the 
determination  of  international  conflicts  of  a  legal  nature,  would  retard 
the  formation  of  a  larger  and  more  general  tribunal,  especially  if  it 
were  understood  and  clearly  expressed  in  the  agreement  that  the 
proposed  court  is  established  because  of  the  present  difficulty  in  con- 
stituting a  larger  and  a  more  general  one,  and  that  the  powers  under- 
taking its  creation  state,  at  the  time  of  its  institution,  their  willingness 
to  cooperate  in  the  formation  of  the  larger  tribunal,  either  through 
subsequent  diplomatic  negotiations  or  at  the  Third  Peace  Con- 
ference. 

It  is  assuredly  inherent  in  sovereignty  that  any  number  of  powers 
may  agree  to  establish  a  tribunal  for  themselves,  unless  they  have 
expressly  renounced  the  right  to  do  so,  and  a  renunciation  of  this 
right  is  not  known  to  exist. 

The  Convention  for  the  establishment  of  a  Court  of  Arbitral  Justice 
adopted  at  The  Hague  did  not  specify,  as  has  been  stated,  any  number 
of  powers  as  necessary  to  its  creation ;  and  the  recommendation  to 
the  powers  adopted  by  the  Conference  to  establish  the  court  through 
diplomatic  channels,  makes  no  mention  of  the  number  of  powers 
which  might  be  requisite.  In  this  respect  the  draft  convention  differed 
from  that  of  the  Prize  Court  which  states  in  Article  52  that: 

The  deposit  of  the  ratifications  shall  take  place  ...  if  the 
powers  which  are  ready  to  ratify  furnish  nine  judges  and  nine 
substitute  judges  to  the  court,    qualified  to  validly  constitute  the 


84 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


court.     If  not,  the  deposit  shall  be  postponed  until  this  condition 
is  fulfilled.^ 


Present 
proposition. 


Reasons  for 
and  against 
representation 
of  IjtiRating 
nations  in 
proposed    court. 


That  this  interpretation  is  correct  is  evident  from  Article  54,  which 
declares  that  "  the  present  convention  shall  come  into  force  six  months 
from  the  deposit  of  the  ratifications  contemplated  in  Article  52."  ^ 

It  should  further  be  stated  that  it  was  contemplated  that  a  sufficient 
number  of  powers  might  not  ratify  the  convention  to  furnish  the 
fifteen  judges  of  which  it  was  to  consist,  as  Article  56  provides  that 
"when  the  total  number  of  judges  is  less  than  eleven,  seven  judges 
form  the  quorum."  ^ 

There  is,  however,  another  reason  for  believing  that  the  cooperation 
of  no  definite  number  of  powers  is  necessary  to  the  establishment  of 
the  Arbitral  Court,  because  the  text  of  the  draft  convention  as  finally 
adopted  is  silent  on  this  question.  The  number  of  judges  of  which 
it  is  to  be  composed  is  not  specified,  and,  as  previously  stated,  the 
recommendation  adopted  by  the  Conference  for  the  constitution  of 
the  court  through  diplomatic  channels  does  not  make  its  institution 
depend  upon  the  cooperation  of  any  definite  number.  Its  establish- 
ment is  conditioned  solely  upon  an  agreement  as  to  the  choice  of  the 
judges  and  the  constitution  of  the  court.  It  would  seem  to  be  clear, 
therefore,  that  any  number  of  powers  can  agree  upon  the  choice  of 
judges  and  the  constitution  of  the  court,  in  so  far  as  they  are  con- 
cerned, and  that  when  this  is  done,  the  court  is  established  for  them 
without  violating  either  the  letter  or  spirit  of  the  draft  convention  or 
recommendation.  Its  establishment,  therefore,  would  seem  to  depend 
upon  the  willingness  of  a  certain  number  of  powers  to  constitute  it. 

The  present  proposition  therefore  is,  that  the  Netherland  Minister 
of  Foreign  Afifairs  sound  the  eight  powers  which  have  been  referred 
to  as  probably  willing  to  create  the  Court  of  Arbitral  Justice,  in  which 
court  each  of  the  powers,  including  Holland,  would  be  represented 
by  a  judge  of  its  own  choice. 

It  may  perhaps  seem  strange  that  the  undersigned,  who  has  always 
been  opposed  to  the  participation  of  judges  of  the  litigating  nations 
in  the  decision  of  a  controversy,  should  propose  that  the  Court  of 

^  Le  depot  des  ratifications  aura  lieu  ...  si  les  Puissances  pretes  a^  ratifier 
peuvent  fournir  a  la  Cour  neuf  juges  et  neuf  juges  suppleants  aptes  a  sieger 
effectivement.  Dans  le  cas  contraire,  le  depot  sera  ajourne  jusqu'au  moment 
oil  cette  condition  sera  remplie. 

*  La  presente  Convention  entrera  en  vigueur  six  mois  a  partir  du  depot  des 
ratifications   prevu   par  I'article   52. 

'  Quand  le  nombre  total  de  juges  est  inferieur  a  onze,  sept  juges  constituent 
le  quorum  necessaire. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  85 

Arbitral  Justice  be  composed  of  judges  appointed  by  each  of  the 
nations  taking  part  in  its  estabUshment.  There  are,  however,  several 
reasons  which  lead  him  to  favor  in  practice  what  is  to  be  rejected  in 
theory.  The  experience  of  mixed  commissions  and  in  a  lesser  degree 
of  special  tribunals,  has  been  that  the  decision  practically  turns  upon 
the  vote  of  the  umpire,  and  that  the  judges  of  the  parties  act  as 
advocates  seeking  to  win  the  umpire  to  their  point  of  view.  This 
would  be  dangerous  in  a  commission  of  three  in  which  each  litigant 
was  represented  by  a  national  or  in  a  commission  or  tribunal  of  five 
in  which  only  the  umpire  was  a  disinterested  person.  Where,  how- 
ever, the  strangers  to  the  suit,  not  the  nationals  of  the  parties,  form 
the  majority  of  the  court,  the  danger  is  not  so  great,  although  it  is 
still  present.  The  larger  the  court,  the  less  the  danger ;  and  it  is 
believed  that  it  would  be  reduced  to  the  minimum  in  the  proposed 
court  of  nine  judges. 

But  there  is  another  reason  of  a  practical  nature  which,  although 
he  does  not  share  it,  nevertheless  appeals  strongly  to  the  undersigned, 
namely,  that  nations  seem  honestly  to  believe  that  in  the  present  state 
of  international  development,  a  national  should  take  part  in  a  case 
affecting  his  country,  so  as  to  be  sure  that  the  attitude  of  his  country 
and  the  argument  of  counsel  be  carefully  weighed  and  considered  by 
the  court ;  and  that  the  presence  of  nationals  on  the  bench  not  only 
secures  this,  but  prevents  the  use  of  language  which  might  wound  the 
amour  propre  of  one  or  the  other  of  the  litigating  nations.  If  it  be 
true,  for  this  or  for  any  other  honorable  reason,  that  prospective 
litigants  would  have  greater  confidence  in  a  tribunal  in  which  they 
are  represented,  it  would  be  unwise  even  to  suggest  that  they  be 
excluded  from  the  court.  Anything  that  renders  the  court  attractive, 
anything  that  encourages  the  resort  to  it  and  facilitates  its  use,  should 
be  accepted,  provided  it  be  not  inconsistent  with  the  fundamental 
reason  for  its  creation,  namely,  the  administration  of  justice. 

It  is,  however,  possible  to  suggest  a  compromise  between  these 
extreme  views,  if  one  be  thought  desirable,  by  the  adoption  of  the 
principle  laid  down  in  Article  18  of  the  Prize  Court  Convention  which 
provides  that  "  the  belligerent  captor  is  entitled  to  appoint  a  naval 
officer  of  high  rank  to  sit  as  assessor,  but  with  no  voice  in  the 
decision."  ^ 

That  is  to  say,  the  national  judge  might  assist  in  an  advisory 
capacity  in   suits  concerning  his  country,   without,   however,   taking 

'  Le  belligerant  capteur  a  le  droit  de  designer  un  officier  de  marine  d'un  grade 
eleve  qui  siegera  en  qualite  d'assesseur  avec  voix  consultative. 


86 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


Holland  as  seat 
of   court  should 
take    initiative 
for  its  estab- 
lishment. 


Recommenda- 
tions of  Con- 
ference should 
be  carried  out 
before    meeting 
of  its  successor. 


part  in  the  decision.  This  method  would  have  the  advantages  of 
personal  representation  without  its  disadvantages,  because  the  nationals 
would  not  only  abstain  from  voting,  but  might  withdraw  from  the 
council  chamber,  if  this  were  thought  advisable,  so  as  not  to  embarrass 
the  other  judges  by  their  presence  at  the  moment  of  reaching  a  decision. 

The  nationals  might  be  consulted  in  the  formulation  of  the  decision 
and  be  of  service  in  rendering  its  terms  less  distasteful  to  their  coun- 
tries. But  this  is  a  matter  to  be  decided  by  the  contracting  parties, 
and  experience  in  this  as  in  other  details  will  doubtless  suggest  the 
proper  solution  of  the  problem.  It  may,  however,  be  stated  positively 
that  if  one  nation  is  represented  in  a  case  concerning  it,  the  other  must 
be,  whether  it  be  a  contracting  or  a  non-contracting  party ;  for  equality 
of  treatment,  in  fact  as  well  as  in  theory,  is  an  essential  of  inter- 
national law. 

It  is  believed  that  such  a  court  could  be  established  if  some  one 
power  would  take  the  initiative.  It  would  seem  that  Holland,  as  the 
host  of  the  court,  should  express  in  the  first  instance  its  willingness 
to  have  the  court  established  in  its  territory,  because  if  created,  it  is 
not  merely  to  sit  on  Netherland  soil,  but  to  be  installed  in  the  Peace 
Palace  side  by  side  with  the  so-called  Permanent  Court  of  Arbitration. 

There  is,  however,  a  reason  which  leads  the  undersigned  to  believe 
that  the  Netherland  Minister  of  Foreign  Affairs  is  not  merely  justified 
in  taking  the  initiative  for  the  establishment  of  the  Court  of  Arbitral 
Justice,  but  that  it  is  his  duty  to  do  so.  It  is  essential  to  the  success 
of  the  Conferences  that  the  recommendations  of  one  Conference  be 
carried  into  effect  before  the  meeting  of  its  successor.  The  Second 
Conference  recommended  that  the  Court  of  Arbitral  Justice  be  estab- 
lished through  diplomatic  channels.  It  did  not  suggest  that  its  con- 
sideration be  dropped  upon  the  adjournment  of  the  Conference,  and 
that  its  establishment  figure  in  the  program  of  the  Third  Conference, 
which  it  recommended  should  be  held,  approximately,  in  the  year  1915. 
It  would  seem  admittedly  proper  that  the  United  States,  as  the  pro- 
poser of  the  Court  of  Arbitral  Justice  at  the  Second  Conference, 
should  take  the  initiative,  but  the  approval  of  the  Conference  gives 
the  proposal  an  international  standing  which  it  did  not  formerly 
possess ;  and  any  action  taken  by  the  Netherland  Government  to  put 
into  effect  the  recommendations  of  the  Conference  would  be  justified 
by  the  fact  that  the  Netherlands  is  the  host  of  the  Conference,  and 
thus  has  a  very  special  interest  in  its  success  and  in  the  ratification 
of  its  projects. 

It    will   be   recalled    that    the    Netherland    Government    took   the 


AN  INTERNATIONAL  COURT  OF  JUSTICE  87 

initiative  in  securing  the  exclusion  of  Article  10  of  the  Convention  for 
the  adaptation  to  maritime  warfare  of  the  principles  of  the  Geneva 
Convention  of  August  22,  1864,  and  it  is  within  the  official  knowledge 
of  the  present  Minister  of  Foreign  Affairs  of  the  Netherlands  that 
his  Government  took  the  initiative  in  securing  the  acceptance  of  the 
additional  protocol  which  modified  the  provisions  of  the  Prize  Court 
Convention. 

The  proposal  to  establish  a  truly  permanent  court,  namely,  the  Admin^st?ftive 
Court  of  Arbitral  Justice,  might  well  be  communicated  to  the  nations  ^°"""t  co^rT 
by  the  Netherland  Minister  of  Foreign  Afifairs,  because  should  this  ^^^^t'^"'""^'^ 
court  be  established,  the  Administrative  Council  of  which  he  is  presi- 
dent, acts  as  the  agent  of  the  powers,  and  the  International  Bureau 
created  by  and  subject  to  the  Administrative  Council,  is  utilized  by 
the  proposed  court. 

Thus,  Article  12  of  the  draft  convention  provides  that : 

The  Administrative  Council  fulfils  with  regard  to  the  Court 
of  Arbitral  Justice  the  same  functions  as  to  the  Permanent  Court 
of  Arbitration.^ 

And  Article  13  thus  defines  the  relations  of  the  International 
Bureau  of  the  existing  court  to  the  proposed  court : 

The  International  Bureau  acts  as  registry  to  the  Court  of  Ar- 
bitral Justice  and  must  place  its  officers  and  staff  at  the  disposal 
of  the  court.  It  has  charge  of  the  archives  and  carries  out  the 
administrative  work. 

The  secretary  general  of  the  Bureau  discharges  the  functions 
of  registrar.^ 

It  would  therefore  seem  that  the  Netherland  Minister  of  Foreign 
Affairs  is,  by  virtue  of  his  presidency  of  the  Administrative  Council, 
not  merely  interested  in  the  establishment  of  the  court,  but  that  he 
might  well  consider  it  incumbent  upon  him  to  take  the  necessary  steps 
to  secure  its  establishment,  by  reason  of  the  close  and  intimate  rela- 
tions existing  between  the  two  offices  which  he  has  the  honor  to  hold. 

There  is  another  reason  which  suggests  the  initiative  of  the  Nether- 
land Minister  of  Foreign  Affairs,  namely,  the  fact  that  his  distinguished 

^  Le  Conseil  administratif  remplit  a  I'egard  de  la  Cour  de  Justice  arbitrale 
les  fonctions  qu'il  remplit  a  I'egard  de  la  Cour  permanente  d'arbitrage. 

*  Le  Bureau  international  sert  de  greffe  a  la  Cour  de  Justice  arbitrale  et  doit 
mettre  ses  locaux  et  son  organisation  a  la  disposition  de  la  Cour.  II  a  la  garde 
des  archives  et  la  gestion  des  affaires  administratives. 

Le  Secretaire  General  du  Bureau  remplit  les  fonctions  de  greffier. 


88 


AN  INTERNATIONAL  COURT  OF  JUSTICE 


Non-contracting 
nations  might 
be  offered  use 
of  court  and 
appoint  judges 
ad   hoc. 


Court  is  ex- 
periment and 
should   be  tried 
under  most 
favorable 
circumstances. 


predecessor  agreed,  upon  the  request  of  the  United  States,  to  sound 
the  nations  as  to  their  wilHngness  to  create  the  Court  of  Arbitral 
Justice,  even  although  but  a  limited  number  should  cooperate  in  its 
creation.  If  it  be  objected  that  the  establishment  of  the  Court  of  Prize 
was  a  condition  precedent  to  this  action  on  the  part  of  Holland,  the 
reply  is  that  the  establishment  of  the  Prize  Court  was  necessary,  as 
has  been  pointed  out,  because  the  composition  of  this  court  was  to 
be  used  for  the  Court  of  Arbitral  Justice,  and  it  seemed  the  part  of 
wisdom  to  wait  until  the  Prize  Court  should  come  into  being  before 
attempting  to  institute  the  Court  of  Arbitral  Justice.  But  the  failure 
of  the  British  Government  to  ratify  the  Prize  Court  Convention,  due  to 
the  objection  of  the  House  of  Lords,  may  prevent  for  years  to  come 
the  establishment  of  the  Prize  Court,  and  there  seems  to  be  no  reason 
why  nations  desiring  the  Court  of  Arbitral  Justice  should  longer  defer 
the  realization  of  this  project,  especially  when  the  method  proposed 
does  not  in  any  way  depend  upon  the  existence  of  the  Prize  Court. 

Should  the  nine  nations  be  willing,  there  is  no  reason  why  provision 
should  not  be  made  for  non-contracting  nations  to  make  use  of  the 
Court  with  the  consent  of  the  contracting  powers.  The  convention 
establishing  the  court  might  provide  that,  with  the  consent  of  the  non- 
contracting  power  or  powers,  the  case  could  be  tried  before  the  court 
and  that  the  non-contracting  power  should  appoint  a  judge  ad  hoc  for 
the  trial  of  the  controversy.  In  this  way,  the  court  would  be  estab- 
lished for  the  nine  powers  willing  to  create  it ;  each  of  these  countries 
would  be  represented  in  it  by  a  judge  of  its  own  choice  to  serve  during 
the  life  of  the  convention,  and  each  judge  so  chosen  would  undoubtedly 
be  a  distinguished  jurist.  The  decision  of  the  court  would,  as  has 
previously  been  stated,  bind  not  merely  the  parties  litigant,  but  the  nine 
nations.  International  law  would  thus  have  an  organ,  not  merely  for 
the  settlement  of  disputes,  but  for  the  development  of  international 
law  by  judicial  decision,  and  the  provision  that  non-contracting  powers 
might,  upon  their  request,  use  the  court,  would  place  it  at  the  disposal 
of  any  and  every  nation  that  wished  to  have  an  international 
controversy  determined  by  judges  acting  under  a  sense  of  judicial 
responsibility. 

A  court  of  nine  powers  would  be  an  international  tribunal,  and 
with  the  provision  for  its  use  by  non-contracting  powers,  it  might  serve 
as  a  universal  court.  It  would  not,  however,  be  the  court  for  the 
nations  at  large,  but  it  would  be  a  great  step  toward  the  realization  of 
such  a  tribunal.  It  is  perhaps  best  to  proceed  carefully  and  cautiously, 
and  to  try  an  experiment  upon  a  small  scale  before  proposing  to  try  it 


AN  INTERNATIONAL  COURT  OF  JUSTICE  89 

upon  the  largest  scale.  A  court  of  the  nine  powers  would,  it  is  believed, 
enable  the  experiment  to  be  tried  under  the  most  favorable  circum- 
stances, and  experience  might  suggest  the  ways  and  means  by  which 
the  court  might  be  expanded  so  as  to  include  other,  if  not  all,  nations, 
or,  indeed,  the  court,  if  successful,  might  assume  the  proportions  of  a 
truly  international  court. 

It  has  been  said  that  such  a  court  is  an  experiment.    If  the  experi-   Experience 

1-1  1  111  1-/-     ,  ...  would    facilitate 

ment  succeeds,  either  the  court  would  be  modified  to  make  it  the  court  establishment  of 

-     ,  .  ,  ,  1   I  larger   court. 

of  the  nations  at  large,  or  such  a  court  would  be  created  as  the  result 
of  experience.  If,  however,  the  court  should  fail,  neither  the  nine 
nations  nor  the  nations  at  large  would  care  to  create  an  international 
tribunal.  It  seems,  therefore,  the  part  of  wisdom,  not  merely  to  try 
the  experiment  under  the  most  favorable  conditions,  but  to  determine 
whether  a  large  international  court  is  a  desideratum  of  the  society  of 
nations ;  and  the  undersigned  believes  that  the  court  should  be  estab- 
lished for  the  nine  nations  because  it  would  render  such  service  to 
them  as  to  justify  its  creation,  and  because  its  establishment  and  suc- 
cessful operation  would  inevitably  result  in  that  international  tribunal 
which  is  essential  to  the  development  of  international  law,  by  judicial 
process,  and  to  the  peaceful  settlement  of  international  disputes  of  a 
legal  nature.  For  these  various  reasons,  the  undersigned  deems  it 
possible  to  create  the  Court  of  Arbitral  Justice  for  a  limited  number 
of  powers,  and  he  respectfully  urges  the  Netherland  Minister  of 
Foreign  Afifairs  to  consider  the  possibility  of  establishing  such  a  court 
and  to  take  the  initiative  for  its  establishment  by  proposing  to  the  eight 
powers  above  specified  its  institution  through  diplomatic  channels. 

There  are  two  reasons  which  make  the  initiative  of  the  Netherland   Reasons  why 

present  moment 

Minister  of  Foreign  Affairs  seem  peculiarly  propitious  at  this  time.       >s  propitious  for 

'^      .  f  J    f      I  establishment 

Europe  has  been  in  the  past  few  years  on  the  verge  of  war,  and  the  of  court, 
thoughts  of  statesmen  have  been  diverted  from  peaceful  into  warlike 
channels.  It  appears  probable  that  the  powers  might  welcome  an 
opportunity  to  create  a  tribunal  for  the  decision  of  legal  controversies 
which  may  arise  among  them,  and  thus  to  show  by  a  concrete  example 
their  devotion  to  peace  other  than  armed  peace  and  the  means  through 
which  it  may  be  maintained.  The  proposed  court  would,  to  use  the 
happy  phrase  of  Mr.  Root,  tend  "  to  make  the  practice  of  civilized 
nations  conform  to  their  peaceful  professions."  In  the  next  place,  the 
creation  of  the  court  for  a  limited  number  of  powers  at  the  present 
time  would  make  it  a  certainty  that  the  question  of  establishing  the 
court  for  all  members  of  the  society  of  nations  would  be  included  in 
the  program  of  the  Third  Conference,  and  that  the  various  govern- 


90  AN  INTERNATIONAL  COURT  OF  JUSTICE 

ments  would  study  the  problem  in  advance  of  the  meeting  to  see  if 
it  could  be  solved  at  that  Conference. 

There  is,  however,  another  reason  which  makes  the  initiative  of  the 
Netherland  Minister  of  Foreign  Afifairs  at  this  moment  peculiarly 
timely;  for  on  the  28th  day  of  August,  1913,  the  Peace  Palace  which 
houses  the  present  so-called  Permanent  Court  of  Arbitration  was 
formally  opened.  An  Academy  of  International  Law  is  shortly  to 
be  installed  in  the  Palace,  which  at  present  is  little  more  than  a  shell 
Would  not  th&  powers  specified  be  willing  to  enter  into  negotiations 
at  the  request  of  the  Netherland  Government  so  that  at  the  formal 
opening  of  the  Academy,  which  it  is  hoped  will  take  place  in  the  month 
of  August  of  the  present  year,  the  Netherland  Minister  of  Foreign 
Affairs  might  be  able  to  announce  that  the  nine  powers  in  question 
had  agreed  upon  the  constitution  and  installation  of  the  Court  of 
Arbitral  Justice  in  the  Peace  Palace,  thus  converting  it  into  a  Palace 
of  Justice? 

It  may  be  that  the  enthusiasm  of  the  moment  has  mastered  the 
sober  judgment  of  the  undersigned.  But  years  of  reflection  have 
convinced  him  that  the  establishment  of  the  court  is  possible;  that  it 
would  render  even  greater  services  to  the  nations  than  the  Supreme 
Court  of  the  United  States  has  rendered  to  the  states  of  the  American 
Union,  and  he  can  not  dismiss  from  his  mind  the  feeling  that  upon 
the  request  of  the  Netherland  Minister  of  Foreign  Affairs,  the  various 
powers  which  have  heretofore  expressed  their  willingness  to  constitute 
the  court,  might  consent  to  do  so  in  the  course  of  the  next  few  months. 
Thus  the  year  of  1914  would  be  memorable  for  the  establishment  of 
a  permanent  Academy  to  discuss  and  to  develop  the  law  of  nations, 
and  for  the  establishment  of  a  truly  permanent  Court  of  Justice  to 
interpret  and  to  apply  the  principles  of  international  law  upon  which 
the  Academy  had  set  the  seal  of  its  approval. 

It  may  be  a  dream,  but  it  is  a  beautiful  dream,  and  its  realization 
would  make  for  the  good  of  humanity.  The  dreams  of  to-day,  we 
are  told,  are  the  realities  of  the  morrow.  That  it  may  be  so  in  this 
case  is  the  daily  hope  and  prayer  of  the  undersigned. 

James  Brown  Scott. 

The  Hague,  January  12,  1^14. 


Appendix  No.  i 

Draft  Convention  concluded  at  Paris  in  March,  ipio,  by  Representa- 
tives of  Germany,  the  United  States,  France  and  Great  Britain  to 
put  into  effect  the  Draft  Convention  recommended  by  the  Second 
Peace  Conference  relating  to  the  Establishment  of  a  Court  of 
Arbitral  Justice 

His  Majesty  the  German  Emperor,  King  of  Prussia,  .   .  . 

Considering  that  the  Second  Peace  Conference,  in  the  Final  Act  of 
October  i8,  1907,  recommended  to  the  signatory  Powers  the  adoption 
of  the  draft,  appended  to  said  act,  of  a  Convention  for  the  establishment 
of  a  Court  of  Arbitral  Justice  and  the  putting  it  into  force  as  soon  as 
an  agreement  should  be  reached  on  the  choice  of  the  judges  and  the 
organization  of  the  court; 

Being  desirous  of  contributing  toward  the  realization  of  the  recom- 
mendation thus  expressed; 

Deeming  that,  if  it  is  impossible  as  yet  to  reach  a  general  agreement 
for  putting  into  force  the  draft  thus  recommended,  it  is  nevertheless 
useful  to  establish  a  Court  of  Arbitral  Justice  which  may  operate 
pending  subsequent  permanent  rules ; 

Being  persuaded  that  such  a  measure,  essentially  provisional,  does 
not  in  any  way  prejudge  any  agreement  which  may  be  reached  later 
for  the  permanent  organization  of  the  Court  of  Arbitral  Justice,  and 
that  such  an  agreement  is  particularly  likely  to  be  reached  at  the  Third 
Peace  Conference ; 

Have  decided  to  conclude  a  convention  to  insure  the  putting  into 
force  of  the  aforementioned  draft,  and  have  appointed  as  their  pleni- 
potentiaries, to  wit: 

Who,  after  depositing  their  full  powers,  found  to  be  in  due  and 
proper  form,  have  agreed  upon  the  following  provisions : 

Article  i 

The  contracting  Powers  agree  to  put  into  force  the  draft,  appended 
to  the  Final  Act  of  the  Second  Peace  Conference,  of  a  Convention 

91 


92  AN  INTERNATIONAL  COURT  OF  JUSTICE 

relating  to  the  establishment  of  a  Court  of  Arbitral  Justice,  making 
thereto  the  necessary  additions  as  stated  below.  The  said  draft,  thereby 
made  the  standing  rules  binding  the  contracting  parties,  is  appended 
to  the  present  Convention  and  forms  an  integral  part  thereof.^ 

Article  2 

The  Court  of  Arbitral  Justice  shall  be  composed  of  fifteen  judges, 
nine  constituting  a  quorum. 

A  judge  who  is  absent  or  prevented  from  acting  shall  be  superseded 
by  his  substitute. 

Article  3 

The  judges  and  substitute  judges  shall  be  appointed  by  the  con- 
tracting Powers. 

They  shall  participate  in  the  operation  of  the  court  in  the  proportion 
indicated  in  Article  15  of  the  Convention  of  October  18,  1907,  for 
the  establishment  of  an  International  Prize  Court  and  in  the  table 
annexed  to  said  article. 

The  judges,  sitting  in  turn,  take  rank  in  accordance  with  the  date 
of  their  assumption  of  office. 

Article  4 

If  a  contracting  Power  engaged  in  controversy  has,  according  to 
the  rota,  no  judge  sitting  in  the  court,  it  may  ask  that  the  judge  or 
substitute  judge  appointed  by  it  sit  with  the  court  in  judgment  of 
the  case. 

Article  5 

The  Administrative  Council  referred  to  in  the  rules  shall  comprise 
the  diplomatic  representatives  of  the  contracting  Powers  accredited  to 
The  Hague  and  the  Minister  for  Foreign  Affairs  of  the  Netherlands. 

Article  6 

Action  may  be  brought  before  the  Court  of  Arbitral  Justice  and  its 
delegation,  provided  for  in  Article  6  of  the  rules,  even  by  non-con- 
tracting Powers.  In  this  case,  the  expenses  and  fees  due  especially 
by  reason  of  the  case  which  concerns  them  shall  be  defrayed  by  them 

*  For  the  text  of  the  Draft  Convention,  see  post,  p.  100. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  93 

to  the  extent  determined  by  the  court  or  its  delegation,  which  shall 
take  into  account  that  one  of  the  litigant  parties  is  a  non-contracting 
Power  or  that  the  court  is  convening  especially  for  the  case. 

Article  7 

The  general  expenses  of  the  Court  of  Arbitral  Justice  shall  be 
borne  by  the  contracting  Powers  in  the  proportion  of  their  participation 
in  the  operation  of  the  court,  as  provided  by  Article  3  of  the  present 
Convention.  The  designation  of  substitute  judges  shall  not  constitute 
a  basis  of  contribution. 

The  Administrative  Council  shall  apply  to  the  Powers  in  order  to 
obtain  the  necessary  funds  for  the  operation  of  the  court. 

Article  8 

The  present  Convention  shall  be  ratified  and  the  ratification 
deposited  at  The  Hague  as  soon  as  eighteen  Powers  shall  be  ready  to 
ratify  and  can  furnish  to  the  court  nine  judges  and  nine  substitute 
judges  capable  of  actually  sitting. 

Article  9 

The  Powers  designated  in  Article  3  shall  be  permitted  to  sign  the 
present  Convention  up  to  the  deposit  of  the  ratifications  provided  by 
Article  8. 

After  deposit  they  shall  be  permitted  at  any  time  simply  to  adhere 
to  it.  A  Power  desirous  of  adhering  shall  make  its  intention  known 
in  writing  to  the  Netherland  Government,  transmitting  to  the  latter 
at  the  same  time  its  declaration  of  adherence,  which  shall  be  filed 
in  the  archives  of  said  Government.  The  latter  shall  send,  through 
diplomatic  channels,  a  certified  copy  of  the  notice  and  of  the  declaration 
of  adherence  to  all  the  Powers  designated  in  the  foregoing  paragraph, 
informing  them  of  the  date  on  which  it  has  received  the  notice. 

Article  10 

In  case  the  present  Convention  is  not  in  force  with  respect  to  all 
the  Powers  designated  in  Article  3,  the  Administrative  Council  shall, 
in  accordance  with  the  provisions  of  this  article,  draw  up  a  list  of 
judges  and  substitute  judges  through  whom  the  contracting  Powers 
participate  in  the  operations  of  the  court.    The  judges  called  upon  to 


94  AN  INTERNATIONAL  COURT  OF  JUSTICE 

sit  in  turn  shall,  for  the  time  which  is  assigned  to  them,  be  distributed 
in  such  a  manner  that  the  court  may,  as  far  as  possible,  hold  its  sessions 
each  year  with  an  equal  number  of  judges.  If  the  number  of  substitute 
judges  exceeds  the  number  of  judges  the  number  of  the  latter  may 
be  filled  out  by  means  of  substitute  judges  designated  by  lot  among 
those  Powers  which  do  not  appoint  regular  judges. 

The  list  thus  prepared  by  the  Administrative  Council  shall  be  made 
known  to  the  contracting  Powers.  It  shall  be  revised  when  the  number 
of  the  contracting  Powers  is  modified  as  a  result  of  adhesions  or 
denunciations. 

The  change  to  be  made  as  a  result  of  an  adhesion  shall  take  effect 
only  on  and  after  January  i,  following  the  date  on  which  the  adhesion 
takes  effect. 

When  the  total  number  of  judges  is  less  than  eleven,  seven  judges 
shall  constitute  a  quorum. 


Appendix  No.  2 


Draft  of  a  Convention  for  the  putting  into  force  of  the  Draft  Conven- 
tion relating  to  the  Establishment  of  a  Court  of  Arbitral  Justice, 
concluded  at  The  Hague,  July,  iQio 

His  Majesty  the  German  Emperor,  King  of  Prussia,  .   .   . 

Considering  that  the  Second  Peace  Conference,  in  the  Final  Act 
of  October  18,  1907,  recommended  to  the  signatory  Powers  the  adop- 
tion of  the  draft,  appended  to  said  act,  of  a  Convention  for  the  estab- 
lishment of  a  Court  of  Arbitral  Justice  and  the  putting  it  into  force 
as  soon  as  an  agreement  should  be  reached  on  the  choice  of  the  judges 
and  the  organization  of  the  court ; 

Being  desirous  of  contributing  toward  the  realization  of  the  recom- 
mendation thus  expressed ; 

Deeming  that,  if  it  is  impossible  as  yet  to  reach  a  general  agreement 
for  putting  into  force  the  draft  thus  recommended,  it  is  nevertheless 
useful  to  establish  a  Court  of  Arbitral  Justice  which  may  operate 
pending  subsequent  permanent  rules ; 

Being  persuaded  that  such  a  measure,  essentially  provisional,  does 
not  in  any  way  prejudge  any  agreement  which  may  be  reached  later 
for  the  permanent  organization  of  the  Court  of  Arbitral  Justice,  and 


AN  INTERNATIONAL  COURT  OF  JUSTICE  95 

that  such  an  agreement  is  particularly  likely  to  be  reached  at  the  Third 
Peace  Conference ; 

Have  decided  to  conclude  a  convention  to  insure  the  putting  into 
force  of  the  aforementioned  draft,  and  have  appointed  as  their  pleni- 
potentiaries, to  wit : 

Who,  after  depositing  their  full  powers,  found  to  be  in  due  and 
proper  form,  have  agreed  upon  the  following  provisions : 

Article  i 

The  contracting  Powers  agree  to  put  into  force  the  draft,  appended 
to  the  Final  Act  of  the  Second  Peace  Conference,  of  a  Convention 
relating  to  the  establishment  of  a  Court  of  Arbitral  Justice,  making 
thereto  the  necessary  additions  as  stated  below.  The  said  draft,  thereby 
made  the  standing  rules  binding  the  contracting  parties,  is  appended 
to  the  present  Convention  and  forms  an  integral  part  thereof.^ 

Article  2 

The  Court  of  Arbitral  Justice  shall  be  composed  of  fifteen  judges, 
nine  constituting  a  quorum. 

A  judge  who  is  absent  or  prevented  from  acting  shall  be  superseded 
by  his  substitute. 

Article  3 

The  judges  and  substitute  judges  shall  be  appointed  by  the  con- 
tracting Powers. 

They  shall  participate  in  the  operation  of  the  court  in  the  proportion 
indicated  in  Article  15  of  the  Convention  of  October  16,  1907,  for  the 
establishment  of  an  International  Prize  Court  and  in  the  table  annexed 
to  said  article. 

The  judges,  sitting  in  turn,  take  rank  in  accordance  with  the  date 
of  their  assumption  of  office. 

Article  4 

If  a  contracting  Power  engaged  in  a  controversy  has,  according  to 
the  rota,  no  judge  sitting  in  the  court,  it  may  ask  that  the  judge  or 
substitute  judge  appointed  by  it  sit  wuth  the  court  in  judgment  of 
the  case. 

*For  text  of  the  Draft  Convention,  see  post,  p.  100. 


96  AN  INTERNATIONAL  COURT  OF  JUSTICE 

Article   5 

The   Administrative    Council    referred    to   in   Article    12   of  the 

appended  rules  shall  comprise  the  diplomatic  representatives  of  the 

contracting  Powers  accredited  to  The  Hague  and  the  Minister  for 
Foreign  Affairs  of  the  Netherlands. 

Article  6 

In  derogation  of  Article  21  of  the  rules,  action  may  be  brought 
before  the  Court  of  Arbitral  Justice  and  its  delegation,  provided  for  in 
Article  6  of  the  rules,  even  by  non-contracting  Powers.  In  this  case, 
the  expenses  and  fees  due  especially  by  reason  of  the  case  which 
concerns  them  shall  be  defrayed  by  them  to  the  extent  determined 
by  the  court  or  its  delegation,  which  shall  take  into  account  that  one 
of  the  litigant  parties  is  a  non-contracting  Power  or  that  the  court 
is  convening  especially  for  the  case. 

Article  7 

Notwithstanding  the  terms  of  Article  23  of  the  rules,  the  parties 
may,  in  every  case,  claim  the  right  to  use  their  own  language. 

Article  8 

The  general  expenses  of  the  Court  of  Arbitral  Justice  shall  be  borne 
by  the  contracting  Powers  in  the  proportion  of  their  participation 
in  the  operation  of  the  court,  as  provided  by  Article  3  of  the  present 
Convention.  The  designation  of  substitute  judges  shall  not  constitute 
a  basis  of  contribution. 

The  Administrative  Council  shall  apply  to  the  Powers  in  order  to 
obtain  the  necessary  funds  for  the  operation  of  the  court. 

Article  9 

The  present  Convention  shall  be  ratified  and  the  ratification 
deposited  at  The  Hague  as  soon  as  eighteen  Powers  shall  be  ready  to 
ratify  and  can  furnish  to  the  court  nine  judges  and  nine  substitute 
judges  capable  of  actually  sitting. 

Article  10 

The  Powers  designated  in  Article  3,  paragraph  2,  shall  be  permitted 
to  sign  the  present  Convention  up  to  the  deposit  of  the  ratifications 
provided  by  Article  8. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  97 

After  deposit  they  shall  be  permitted  at  any  time  to  simply  adhere 
to  it.  A  Power  desirous  of  adhering  shall  make  its  intention  known 
in  writing  to  the  Netherland  Government,  transmitting  to  the  latter 
at  the  same  time  its  declaration  of  adherence,  which  shall  be  filed 
in  the  archives  of  said  Government.  The  latter  shall  send,  through 
diplomatic  channels,  a  certified  copy  of  the  notice  and  of  the  declaration 
of  adherence  to  all  the  Powers,  designated  in  the  foregoing  paragraph, 
informing  them  of  the  date  on  which  it  has  received  the  notice. 

Article   i  i 

In  case  the  present  Convention  is  not  in  force  with  respect  to  all 
the  Powers  designated  in  Article  3,  paragraph  2,  the  Administrative 
Council  shall,  in  accordance  with  the  provisions  of  this  article,  draw  up 
a  list  of  judges  and  substitute  judges  through  whom  the  contracting 
Powers  participate  in  the  operations  of  the  court.  The  judges  called 
upon  to  sit  in  turn  shall,  for  the  time  which  is  assigned  to  them,  be 
distributed  in  such  a  manner  that  the  court  may,  as  far  as  possible, 
hold  its  sessions  each  year  with  an  equal  number  of  judges.  If  the 
number  of  substitute  judges  exceeds  the  number  of  judges  the  number 
of  the  latter  may  be  filled  out  by  means  of  substitute  judges  designated 
by  lot  among  those  Powers  who  do  not  appoint  regular  judges. 

The  list  thus  prepared  by  the  Administrative  Council  shall  be  made 
known  to  the  contracting  Powers.  It  shall  be  revised  when  the  number 
of  the  contracting  Powers  is  modified  as  a  result  of  adhesions  or 
denunciations. 

The  change  to  be  made  as  a  result  of  an  adhesion  shall  take  effect 
only  on  and  after  January  i,  following  the  date  on  which  the  adhesion 
takes  effect. 

When  the  total  number  of  judges  is  less  than  eleven,  seven  judges 
shall  constitute  a  quorum. 


98  AN  INTERNATIONAL  COURT  OF  JUSTICE 


Appendix  No.  3 

Proposed  Draft  of  a  Convention  for  the  Establishment  of  a  Court  of 
Arbitral  Justice  by  and  for  Germany,  the  United  States,  Austria- 
Hungary,  France,  Great  Britain,  Italy,  Japan,  the  Netherlands 
and  Russia 

His  Majesty  the  German  Emperor,  King  of  Prussia,  .   .   . 

Considering  that  the  second  Peace  Conference,  in  the  Final  Act  of 
October  18,  1907,  recommended  to  the  signatory  Powers  the  adoption 
of  the  draft,  appended  to  said  act,  of  a  Convention  for  the  estabhsh- 
ment  of  a  Court  of  Arbitral  Justice  and  the  putting  it  into  force  as 
soon  as  an  agreement  should  be  reached  on  the  choice  of  the  judges 
and  the  organization  of  the  court; 

Being  desirous  of  contributing  toward  the  realization  of  the  recom- 
mendation thus  expressed ; 

Deeming  that,  if  it  is  impossible  as  yet  to  reach  a  general  agreement 
for  putting  into  force  the  draft  thus  recommended,  it  is  nevertheless 
useful  to  establish  a  Court  of  Arbitral  Justice  for  such  Powers  as 
may  be  willing  to  cooperate  in  its  establishment  and  which  may  operate 
pending  subsequent  permanent  rules ; 

Being  persuaded  that  such  a  measure,  essentially  provisional,  does 
not  in  any  way  prejudge  any  agreement  which  may  be  reached  later 
for  the  permanent  organization  of  the  Court  of  Arbitral  Justice,  and 
that  such  an  agreement  is  particularly  likely  to  be  reached  at  the  Third 
Peace  Conference; 

Have  decided  to  conclude  a  convention  to  insure  the  putting  into 
force  of  the  aforementioned  draft,  and  have  appointed  as  their  pleni- 
potentiaries, to  wit: 

Who,  after  depositing  their  full  powers,  found  to  be  in  due  and 
proper  form,  have  agreed  upon  the  following  provisions : 

Article   i 

The  contracting  Powers  agree  to  put  into  force  the  draft,  appended 
to  the  Final  Act  of  the  Second  Peace  Conference,  of  a  Convention 
relating  to  the  establishment  of  a  Court  of  Arbitral  Justice,  making 
thereto  the  necessary  additions  as  stated  below.    The  said  draft,  thereby 


AN  INTERNATIONAL  COURT  OF  JUSTICE  99 

made  the  standing  rules  binding  the  contracting  parties,  is  appended 
to  the  present  Convention  and  forms  an  integral  part  thereof.^ 

Article  2 

The  Court  of  Arbitral  Justice  shall  be  composed  of  nine  judges, 
five  constituting  a  quorum. 

Article  3  ' 

Each  contracting  Power  shall  appoint  a  judge  to  serve  during 
the  life  of  the  Convention.  The  judges  thus  appointed  take  rank  in 
accordance  with  the  date  of  their  assumption  of  office. 

Article  4 

The  Administrative  Council  referred  to  in  Article  12  of  the 
appended  rules  shall  comprise  the  diplomatic  representatives  of  the 
contracting  Powers  accredited  to  The  Hague  and  the  Minister  for 
Foreign  Affairs  of  the  Netherlands. 

Article   5 

In  derogation  of  Article  21  of  the  rules,  action  may  be  brought 
before  the  Court  of  Arbitral  Justice  and  its  delegation  provided  for 
in  Article  6  of  the  rules,  even  by  non-contracting  Powers. 

If  the  controversy  submitted  to  the  Court  of  Arbitral  Justice  or 
its  delegation  be  between  a  contracting  and  a  non-contracting  Power, 
the  latter  shall  have  the  right  to  appoint  a  judge  to  take  part  in  the 
trial  and  determination  of  the  case.  If  the  Powers  in  controversy  be 
non-contracting  Powers,  each  one  thereof  shall  have  the  right  to 
appoint  a  judge  to  take  part  in  the  trial  and  determination  of  the  case. 

In  such  cases  the  remuneration  of  the  judges  appointed  by  the 
non-contracting  Power  or  Powers  shall  be  paid  by  the  appointing 
Power,  and  the  expenses  and  fees  caused  by  the  trial  and  determination 
of  the  case  submitted  by  a  non-contracting  Power  or  Powers  shall 
be  defrayed  by  the  non-contracting  Power  or  Powers  to  the  extent 
determined  by  the  court  or  its  delegation,  which  shall  take  into  account 
that  one  or  both  of  the  litigating  parties  is  a  non-contracting  Power, 
or  that  the  court  is  convened  especially  for  the  case. 

*  See  post,  p.  100. 


100  AN  INTERNATIONAL  COURT  OF  JUSTICE 

Article  6 

Notwithstanding  the  terms  of  Article  23  of  the  rules,  the  parties 
may,  in  every  case,  claim  the  right  to  use  their  own  language. 

Article  7 

The  general  expenses  of  the  Court  of  Arbitral  Justice  shall  be 
equally  borne  by  the  contracting  Powers. 

The  Administrative  Council  shall  apply  to  the  contracting  Powers 
in  order  to  obtain  the  necessary  funds  for  the  operation  of  the  court. 

Article  8 

The  present  Convention  shall  be  ratified  and  the  ratification 
deposited  at  The  Hague  as  soon  as  seven  Powers  shall  be  ready  to 
ratify  and  can  furnish  to  the  court  five  judges. 


[Annex] 

Draft  Convention  Relative  to  the  Creation  of  a  Court  of  Arbitral 

Justice'^ 

Part  I. — Constitution  of  the  Judicial  Arbitration  Court 

Article  i 

With  a  view  to  promoting  the  cause  of  arbitration,  the  contracting 
Powers  agree  to  constitute,  without  altering  the  status  of  the  Perma- 
nent Court  of  Arbitration,  a  Court  of  Arbitral  Justice,  of  free  and 
easy  access,  composed  of  judges  representing  the  various  juridical 
systems  of  the  world,  and  capable  of  insuring  continuity  in  arbitral 
jurisprudence. 

Article  2 

The  Court  of  Arbitral  Justice  is  composed  of  judges  and  deputy 
judges  chosen  from  persons  of  the  highest  moral  reputation,  and  all 

1  Draft  Convention  referred  to  in  Articles  i  of  the  three  preceding  Draft 
Conventions,  ante,  pp.  91,  94  and  98. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  loi 

fulfilling  conditions  qualifying  them,  in  their  respective  countries,  to 
occupy  high  legal  posts,  or  be  jurists  of  recognized  competence  in 
matters  of  international  law. 

The  judges  and  deputy  judges  of  the  Court  are  appointed,  as  far 
as  possible,  from  the  members  of  the  Permanent  Court  of  Arbitration. 
The  appointment  shall  be  made  within  the  six  months  following  the 
ratification  of  the  present  Convention. 

Article  3 

The  judges  and  deputy  judges  are  appointed  for  a  period  of  twelve 
years,  counting  from  the  date  on  which  the  appointment  is  notified  to 
the  Administrative  Council  created  by  the  Convention  for  the  pacific 
settlement  of  international  disputes.  Their  appointments  can  be 
renewed. 

Should  a  judge  or  deputy  judge  die  or  retire,  the  vacancy  is  filled 
in  the  manner  in  which  his  appointment  was  made.  In  this  case,  the 
appointment  is  made  for  a  fresh  period  of  twelve  years. 

Article  4 

The  judges  of  the  Court  of  Arbitral  Justice  are  equal  and  rank 
according  to  the  date  on  which  their  appointment  was  notified.  The 
judge  who  is  senior  in  point  of  age  takes  precedence  when  the  date 
of  notification  is  the  same. 

The  deputy  judges  are  assimilated,  in  the  exercise  of  their  functions, 
with  the  judges.    They  rank,  however,  below  the  latter. 

Article  5 

The  judges  enjoy  diplomatic  privileges  and  immunities  in  the 
exercise  of  their  functions,  outside  their  own  country. 

Before  taking  their  seat,  the  judges  and  deputy  judges  must,  before 
the  Administrative  Council,  swear  or  make  a  solemn  affirmation  to 
exercise  their  functions  impartially  and  conscientiously. 

Article  6 

The  Court  annually  nominates  three  judges  to  form  a  special  dele- 
gation and  three  more  to  replace  them  should  the  necessity  arise.  They 
may  be  reelected.     They  are  balloted  for.     The  persons  who  secure  the 


I02  AN  INTERNATIONAL  COURT  OF  JUSTICE 

largest  number  of  votes  are  considered  elected.  The  delegation  itself 
elects  its  president,  who,  in  default  of  a  majority,  is  appointed  by  lot. 

A  member  of  the  delegation  can  not  exercise  his  duties  when  the 
Power  which  appointed  him,  or  of  which  he  is  a  national,  is  one  of 
the  parties. 

The  members  of  the  delegation  are  to  conclude  all  matters  sub- 
mitted to  them,  even  if  the  period  for  which  they  have  been  appointed 
judges  has  expired. 

Article  7 

A  judge  may  not  exercise  his  judicial  functions  in  any  case  in  which 
he  has,  in  any  way  whatever,  taken  part  in  the  decision  of  a  national 
tribunal,  of  a  tribunal  of  arbitration,  or  of  a  commission  of  inquiry,  or 
has  figured  in  the  suit  as  counsel  or  advocate  for  one  of  the  parties. 

A  judge  can  not  act  as  agent  or  advocate  before  the  Court  of 
Arbitral  Justice  or  the  Permanent  Court  of  Arbitration,  before  a 
special  tribunal  of  arbitration  or  a  commission  of  inquiry,  nor  act  for 
one  of  the  parties  in  any  capacity  whatsoever  so  long  as  his  appoint- 
ment lasts. 

Article  8 

The  Court  elects  its  president  and  vice-president  by  an  absolute 
majority  of  the  votes  cast.  After  two  ballots,  the  election  is  made  by 
a  bare  majority  and,  in  case  the  votes  are  even,  by  lot. 


Article  9 

The  judges  of  the  Court  of  Arbitral  Justice  receive  an  annual 
salary  of  6,000  Netherland  florins.  This  salary  is  paid  at  the  end  of 
each  half-year,  reckoned  from  the  date  on  which  the  Court  meets  for 
the  first  time. 

In  the  exercise  of  their  duties  during  the  sessions  or  in  the  special 
cases  covered  by  the  present  Convention,  they  receive  the  sum  of  100 
florins  per  diem.  They  are  further  entitled  to  receive  a  traveling 
allowance  fixed  in  accordance  with  regulations  existing  in  their  own 
country.  The  provisions  of  the  present  paragraph  are  applicable  also 
to  a  deputy  judge  when  acting  for  a  judge. 

These  emoluments  are  included  in  the  general  expenses  of  the 
Court  dealt  with  in  Article  31,  and  are  paid  through  the  International 


AN  INTERNATIONAL  COURT  OF  JUSTICE  103 

Bureau  created  by  the  Convention  for  the  pacific  settlement  of  inter- 
national disputes. 

Article  10 

The  judges  may  not  accept  from  their  own  Government  or  from 
that  of  any  other  Power  any  remuneration  for  services  connected 
with  their  duties  in  their  capacity  of  members  of  the  Court. 

Article  ii 

The  seat  of  the  Court  of  Arbitral  Justice  is  at  The  Hague,  and 
can  not  be  transferred,  unless  absolutely  obliged  by  circumstances, 
elsewhere. 

The  delegation  may  choose,  with  the  assent  of  the  parties  concerned, 
another  site  for  its  meeetings,  if  special  circumstances  render  such  a 
step  necessary. 

Article  12 

The  Administrative  Council  fulfils  with  regard  to  the  Court  of 
Arbitral  Justice  the  same  functions  as  to  the  Permanent  Court  of 
Arbitration. 

Article  13 

The  International  Bureau  acts  as  registry  to  the  Court  of  Arbitral 
Justice,  and  must  place  its  offices  and  staff  at  the  disposal  of  the  Court. 
It  has  charge  of  the  archives  and  carries  out  the  administrative  work. 

The  secretary  general  of  the  Bureau  discharges  the  functions  of 
registrar. 

The  necessary  secretaries  to  assist  the  registrar,  translators  and 
shorthand  writers  are  appointed  and  sworn  in  by  the  Court. 

Article  14 

The  Court  meets  in  session  once  a  year.  The  session  opens  the 
third  Wednesday  in  June  and  lasts  until  all  the  business  on  the  agenda 
has  been  transacted. 

The  Court  does  not  meet  in  session  if  the  delegation  considers 
that  such  meeting  is  unnecessary.  However,  when  a  Power  is 
party  in  a  case  actually  pending  before  the  Court,  the  pleadings  in 


i04  AN  INTERNATIONAL  COURT  OF  JUSTICE 

which  are  closed,  or  about  to  be  closed,  it  may  insist  that  the  session 
should  be  held. 

When  necessary,  the  delegation  may  summon  the  Court  in 
extraordinary  session. 

Article  15 

A  report  of  the  doings  of  the  Court  shall  be  drawn  up  every  year 
by  the  delegation.  This  report  shall  be  forwarded  to  the  contracting 
Powers  through  the  International  Bureau.  It  shall  also  be  communi- 
cated to  the  judges  and  deputy  judges  of  the  Court. 

Article  16 

The  judges  and  deputy  judges,  members  of  the  Court  of  Arbitral 
Justice,  can  also  exercise  the  functions  of  judge  and  deputy  judge 
in  the  International  Prize  Court. 


Part  II. — Competency  and  Procedure 

Article  17 

The  Court  of  Arbitral  Justice  is  competent  to  deal  with  all  cases 
submitted  to  it,  in  virtue  cither  of  a  general  undertaking  to  have 
recourse  to  arbitration  or  of  a  special  agreement. 

Article  18 

The  delegation  is  competent — 

1.  To  decide  the  arbitrations  referred  to  in  the  preceding  article, 
if  the  parties  concerned  are  agreed  that  the  summary  procedure,  laid 
down  in  Part  IV,  Chapter  IV,  of  the  Convention  for  the  pacific  settle- 
ment of  international  disputes  is  to  be  applied ; 

2.  To  hold  an  inquiry  under  and  in  accordance  with  Part  III  of 
the  said  Convention,  in  so  far  as  the  delegation  is  intrusted  with  such 
inquiry  by  the  parties  acting  in  common  agreement.  With  the  assent 
of  the  parties  concerned,  and  as  an  exception  to  Article  7,  paragraph  i, 
the  members  of  the  delegation  who  have  taken  part  in  the  inquiry 
may  sit  as  judges,  if  the  case  in  dispute  is  submitted  to  the  arbitration 
of  the  Court  or  of  the  delegation  itself. 


AN  INTERNATIONAL  COURT  OF  JUSTICE  105 

Article  19 

The  delegation  is  also  competent  to  settle  the  compromis  referred 
to  in  Article  52  of  the  Convention  for  the  pacific  settlement  of  inter- 
national disputes  if  the  parties  are  agreed  to  leave  it  to  the  Court. 

It  is  equally  competent  to  do  so,  even  v^^hen  the  request  is  only  made 
by  one  of  the  parties  concerned,  if  all  attempts  have  failed  to  reach  an 
understanding  through  the  diplomatic  channel,  in  the  case  of — 

1,  A  dispute  covered  by  a  general  treaty  of  arbitration  concluded 
or  renewed  after  the  present  Convention  has  come  into  force,  providing 
for  a  compromis  in  all  disputes,  and  not  either  explicitly  or  implicitly 
excluding  the  settlement  of  the  compromis  from  the  competence  of 
the  delegation.  Recourse  can  not,  however,  be  had  to  the  Court  if  the 
other  party  declares  that  in  its  opinion  the  dispute  does  not  belong  to 
the  category  of  questions  to  be  submitted  to  compulsory  arbitration, 
unless  the  treaty  of  arbitration  confers  upon  the  arbitration  tribunal 
the  power  of  deciding  this  preliminary  question. 

2.  A  dispute  arising  from  contract  debts  claimed  from  one  Power 
by  another  Power  as  due  to  its  nationals,  and  for  the  settlement  of 
which  the  oflfer  of  arbitration  has  been  accepted.  This  arrangement 
is  not  applicable  if  acceptance  is  subject  to  the  condition  that  the 
compromis  should  be  settled  in  some  other  way. 

Article  20 

Each  of  the  parties  concerned  may  nominate  a  judge  of  the  Court 
to  take  part,  with  power  to  vote,  in  the  examination  of  the  case  sub- 
mitted to  the  delegation. 

If  the  delegation  acts  as  a  commission  of  inquiry,  this  task  may  be 
intrusted  to  persons  other  than  the  judges  of  the  Court.  The  traveling 
expenses  and  remuneration  to  be  given  to  the  said  persons  are  fixed 
and  borne  by  the  Powers  appointing  them. 

Article  21 

The  contracting  Powers  only  may  have  access  to  the  (Tourt  of 
Arbitral  Justice  set  up  by  the  present  Convention. 

Article  22 

The  Court  of  Arbitral  Justice  follows  the  rules  of  procedure  laid 
down  in  the  Convention  for  the  pacific  settlement  of  international 


io6  AN  INTERNATIONAL  COURT  OF  JUSTICE 

disputes,  except  in  so  far  as  the  procedure  is  laid  down  in  the  present 
Convention. 

Article  23 

The  Court  determines  what  language  it  will  itself  use  and  what 
languages  may  be  used  before  it. 

Article  24 

The  International  Bureau  serves  as  channel  for  all  communications 
to  be  made  to  the  judges  during  the  interchange  of  pleadings  provided 
for  in  Article  63,  paragraph  2,  of  the  Convention  for  the  pacific  settle- 
ment of  international  disputes. 

Article  25 

For  all  notices  to  be  served,  in  particular  on  the  parties,  witnesses, 
or  experts,  the  Court  may  apply  direct  to  the  Government  of  the  State 
on  whose  territory  the  service  is  to  be  carried  out.  The  same  rule 
applies  in  the  case  of  steps  being  taken  to  procure  evidence. 

The  requests  addressed  for  this  purpose  can  only  be  rejected  when 
the  Power  applied  to  considers  them  likely  to  impair  its  sovereign 
rights  or  its  safety.  If  the  request  is  complied  with,  the  fees  charged 
must  only  comprise  the  expenses  actually  incurred. 

The  Court  is  equally  entitled  to  act  through  the  Power  on  whose 
territory  it  sits. 

Notices  to  be  given  to  parties  in  the  place  where  the  Court  sits 
may  be  served  through  the  International  Bureau. 

Article  26 

The  discussions  are  under  the  control  of  the  president  or  vice- 
president,  or,  in  case  they  are  absent  or  can  not  act,  of  the  senior 
judge  present. 

The  judge  appointed  by  one  of  the  parties  can  not  preside. 

Article  27 

The  Court  considers  its  decisions  in  private,  and  the  proceedings 
are  secret. 

All  decisions  are  arrived  at  by  a  majority  of  the  judges  present.  If 


AN  INTERNATIONAL  COURT  OF  JUSTICE  107 

the  number  of  judges  is  even  and  equally  divided,  the  vote  of  the  junior 
judge,  in  the  order  of  precedence  laid  down  in  Article  4,  paragraph  i, 
is  not  counted. 

Article  28 

The  judgment  of  the  Court  must  give  the  reasons  on  which  it 
is  based.  It  contains  the  names  of  the  judges  taking  part  in  it;  it  is 
signed  by  the  president  and  registrar. 

Article  29 

Each  party  pays  its  own  costs  and  an  equal  share  of  the  costs 
of  the  trial. 

Article  30 

The  provisions  of  Articles  21  to  29  are  applicable  by  analogy  to 
the  procedure  before  the  delegation. 

When  the  right  of  attaching  a  member  to  the  delegation  has  been 
exercised  by  one  of  the  parties  only,  the  vote  of  the  member  attached 
is  not  recorded  if  the  votes  are  evenly  divided. 

Article  31 

The  general  expenses  of  the  Court  are  borne  by  the  contracting 
Powers. 

The  Administrative  Council  applies  to  the  Powers  to  obtain  the 
funds  requisite  for  the  working  of  the  Court. 

Article  32 

The  Court  itself  draws  up  its  own  rules  of  procedure,  which  must 
be  communicated  to  the  contracting  Powers. 

After  the  ratification  of  the  present  Convention  the  Court  shall  meet 
as  early  as  possible  in  order  to  elaborate  these  rules,  elect  the  president 
and  vice-president,  and  appoint  the  members  of  the  delegation. 

Article  33 

The  Court  may  propose  modifications  in  the  provisions  of  the 
present  Convention  concerning  procedure.     These  proposals  are  com- 


io8  AN  INTERNATIONAL  COURT  OF  JUSTICE 

municated   through   the   Netherland  Government  to  the  contracting 
Powers^  which  will  consider  together  as  to  the  measures  to  be  taken. 


Part  III. — Final  Provisions 

Article  34 

The  present  Convention  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A  proces-verbal  of  the  deposit  of  each  ratification  shall  be  drawn 
up,  of  which  a  duly  certified  copy  shall  be  sent  through  the  diplomatic 
channel  to  all  the  signatory  Powers. 

Article  35 

The  Convention  shall  come  into  force  six  months  after  its 
ratification. 

It  shall  remain  in  force  for  twelve  years,  and  shaH  be  tacitly 
renewed  for  periods  of  twelve  years,  unless  denounced. 

The  denunciation  must  be  notified,  at  least  two  years  before  the 
expiration  of  each  period,  to  the  Netherland  Government,  which  will 
inform  the  other  Powers. 

The  denunciation  shall  only  have  eflfect  in  regard  to  the  notifying 
Power.  The  Convention  shall  continue  in  force  as  far  as  the  other 
Powers  are  concerned. 


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